Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Icahn Enterprises Holdings L.P.), Agreement and Plan of Merger (Eldorado Resorts, Inc.), Agreement and Plan of Merger (Gaming & Leisure Properties, Inc.)
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject to the conditions set forth in this Agreement, Acquiror will each of the parties agrees to use its reasonable best efforts (i) to take, or to cause to be taken, all actions that are appropriate action, and to do, or to cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement, including using reasonable best efforts unless the Board of the Directors of the Company has withdrawn its recommendation of this Agreement in compliance herewith, (ii) to obtain the Real Estate Purchase Required Consents and all necessary actions from any Governmental Authorities any Permits or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement Orders required to the contrary, in no event shall the Acquirors, Merger Sub be obtained by Acquiror or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution, delivery and performance of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingtransactions contemplated hereby, after including the ClosingMerger, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance HSR Act (C) Foreign Competition Laws and (D) any other applicable Law; PROVIDED that Acquiror and the Company will cooperate with each other in connection with the making of doubt, the parties agree that any actionall such filings, including entering into providing copies of all such documents to the nonfiling party and its advisors prior to filings and, if requested, will accept all reasonable additions, deletions or changes suggested in connection therewith and (iv) to furnish all information required for any consent decree, hold separate order application or other arrangementfiling to be made pursuant to any applicable Law or any applicable Regulations of any Governmental Authority (including all information required to be included in the Proxy Statement or the Registration Statement) in connection with the transactions contemplated by this Agreement PROVIDED, HOWEVER, that would require either neither Acquiror nor any of its Affiliates shall be under any obligation to divest make proposals, execute or hold separate, carry out agreements or agree submit to divest Orders providing for the sale or hold separateother disposition or holding separate (through the establishment of a trust or otherwise) of any material (in nature or amount) assets or categories of material (in nature or amount) assets of Acquiror, any casino owned by such Acquiror of its Affiliates or by the Company or the holding separate of the shares of Company Common Stock or imposing or seeking to impose any material limitation on the ability of Acquiror or any of its Subsidiaries as or Affiliates to conduct their business or own such assets or to acquire, hold or exercise full rights of ownership of the date shares of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Common Stock.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Netscape Communications Corp), Agreement and Plan of Merger (Barksdale James L), Agreement and Plan of Merger (Netscape Communications Corp)
Appropriate Action; Consents; Filings. (a) Upon The Company and the terms Parent will each cooperate with each other and subject use (and will cause their respective Subsidiaries to the conditions set forth in this Agreement, each of the parties agrees to use its use) commercially reasonable best efforts (i) to take, or to cause to be taken, all actions that are actions, and to do, or to cause to be done, all things necessary, proper or advisable on its part under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement, including using reasonable best efforts (ii) to obtain from any Governmental Authorities any Authorizations or Orders required to be obtained by the Real Estate Purchase Required Consents and all necessary actions Parent or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiariesrespective Subsidiaries in connection with the authorization, (ii) materially limits execution, delivery and performance of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingtransactions contemplated hereby, after including the ClosingMerger, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as and any state securities or “Blue Sky” Laws, (B) the HSR Act and (C) any other applicable Law. The Parent and the Company will cooperate with each other in connection with the making of any such filing, will provide the non-filing party (and its counsel) with a wholereasonable opportunity to review and comment on such filing prior to such filing, will accept all reasonable additions, deletions or changes suggested in connection therewith and will provide the non-filing party with a copy of such filing. For The Parent and the avoidance of doubtCompany will provide each other with any information concerning itself, the parties agree that its Subsidiaries and Affiliates required for any action, including entering into any consent decree, hold separate order application or other arrangementfiling to be made pursuant to any applicable Law or any applicable Regulations of any Governmental Authority in connection with the Agreement and Plan of Merger transactions contemplated by this Agreement. The Company and the Parent will request early termination of the waiting period with respect to the Merger under the HSR Act. Notwithstanding anything herein to the contrary, that would nothing in this Agreement will be deemed to require either Acquiror the Parent or any of its Subsidiaries to divest or hold separateagree to, or agree to divest or hold separate, any casino owned by such Acquiror or by permit the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to takeagree to, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities divestiture (including, without limitation, those in connection with through a licensing arrangement) of any business, assets or property, or the HSR Act and applicable Gaming Laws), unless imposition of any limitation on the effectiveness ability of any of them to conduct their business or to own or exercise control of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)business assets and properties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (BMC Software Inc), Agreement and Plan of Merger (Marimba Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to (i) take, or cause to be taken, all actions that are and to do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to cause the conditions to Closing to be satisfied as promptly as reasonably practicable (and in any event no later than the Outside Date (as the same may be extended)) and to consummate and make effective the Merger and the other Transactions as promptly soon as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, practicable after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement, including preparing and filing, in consultation with any other party hereto and as promptly as reasonably practicable and advisable after the date of this Agreement, all documentation to effect all necessary or advisable applications, notices, petitions, filings, registrations, notifications, statements, submissions of information and other documents (including any required or recommended filings under applicable Regulatory Laws); (ii) to obtain as promptly as reasonably practicable (and in any event no later than the Outside Date (as the same may be extended)) all waiting period expirations or terminations, approvals, consents, clearances, registrations, permits and authorizations from any Governmental Entity or third party that are or may become necessary, proper or advisable to consummate the Transactions; (iii) obtain all necessary consents, approvals or waiver from third parties and (iv) to defend lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement shall be considered “material” for or the purposes consummation of the preceding sentenceMerger and the other Transactions. With regard Notwithstanding the foregoing, or anything else to the contrary herein, if the lessor or licensor under any Governmental EntityCompany Lease Agreement conditions its grant of a consent (including by threatening to exercise a “recapture” or other termination right) upon, or otherwise requires in response to a notice or consent request regarding this Agreement, requested by Parent, the payment of a consent fee, “profit sharing” payment or other consideration (including increased rent payments), or the provision of additional security (including a guaranty), the Company shall notbe solely responsible for making all such payments or providing all such additional security, without the Acquirors’ written consent, terms of which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed subject to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Parent’s approval.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Maxlinear Inc), Agreement and Plan of Merger (Maxlinear Inc)
Appropriate Action; Consents; Filings. (a) Upon In accordance with the terms and subject to the conditions set forth in of this AgreementAgreement (including Section 6.5), each of the parties agrees to hereto will use its their respective reasonable best efforts to take, or cause to be taken, all actions that are 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 under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as promptly expeditiously as practicablepracticable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, consents, approvals, orders Consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities necessary or advisable in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in consummation of the transactions contemplated by this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionAgreement, including entering into 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 consent decreeAction by, hold separate order or other arrangement, that (i) requires any Governmental Authority in connection with the sale, divestiture, licensing or disposition of any material assets or businesses consummation of the Acquirorstransactions contemplated by this Agreement, including the Merger, the Surviving Corporation, Non-Arriver Extraction and the Company or any of their SubsidiariesArriver Sale, (ii) materially limits the conduct obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Acquirors or their Affiliates (including, after the ClosingCompany, the Surviving Corporation 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 Company and its Subsidiaries) or the Acquirors’ freedom of action with respect toArriver Sale, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected 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 an adverse impact in any material respect on stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the Acquirors, their Affiliates execution and their Subsidiaries’ respective businesses, or delivery of any additional instruments necessary to consummate the businesses Merger and any other transactions to be acquired performed or consummated by such party in accordance with the Acquirors pursuant to terms of this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for carry out fully the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Qualcomm Inc/De), Agreement and Plan of Merger (Veoneer, Inc.)
Appropriate Action; Consents; Filings. (a) Upon the terms The parties hereto agree to make an appropriate filing of a Notification and subject Report Form pursuant to the conditions set forth in this Agreement, each of the parties agrees HSR Act and to use its reasonable best efforts to take, or cause make all other filings required to be takenmade prior to the Effective Time by applicable foreign Antitrust Laws (collectively, all actions that are necessary, proper or advisable under this Agreement, “Foreign Antitrust Approvals”) with respect to the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions transactions contemplated hereby as promptly as practicablepracticable and in any event prior to the expiration of any applicable legal deadline (provided, including using reasonable best efforts that the submission or filing of a Notification and Report Form pursuant to obtain the Real Estate Purchase Required Consents HSR Act will be made within ten (10) Business Days of the date of this Agreement) and all necessary actions or non-actions, waivers, consents, approvals, orders to supply as promptly as practicable any additional information and authorizations from Governmental Entities (including, without limitation, those documentary material that may be requested pursuant to the HSR Act and any other filings required in connection with the HSR Act Foreign Antitrust Approvals or any other Antitrust Law. Each of the Company and Parent shall (and shall cause the Company Subsidiaries and the Parent Subsidiaries, respectively, to) take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with any Antitrust Laws, and to enable all waiting periods under applicable Gaming Laws). Notwithstanding anything Antitrust Laws to expire, and to avoid or eliminate each and every impediment under applicable Antitrust Laws asserted by an Governmental Authority, in each case, to cause the Merger and the other transactions contemplated by this Agreement to occur prior to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionOutside Date, including entering into but not limited to (x) promptly complying with or modifying any request for additional information (including any second request) by any Governmental Authority, (y) if necessary to obtain clearance by any Governmental Authority before the Outside Date, offering, negotiating, committing to, taking and effecting, by consent decree, hold separate order or other arrangementotherwise, that (i) requires the sale, divestiture, licensing license or other disposition of any material assets or businesses and all of the Acquirorsshare capital, the Surviving Corporationassets, the Company rights, products or any business of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Parent and their respective Subsidiaries) or , and any other actions that limit the Acquirors’ freedom of action with respect to, or its the ability to retain, any of the businesses of the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates Parent and their respective Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement(z) contesting, taken as a whole. For the avoidance of doubt, the parties agree that defending and appealing any action, including entering into any consent decree, hold separate order lawsuit or other arrangementlegal proceeding, whether judicial or administrative, threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by adversely affect the Company or any ability of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party hereto to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders consummate the transactions contemplated hereby and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant and all other actions to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action prevent the entry, enactment or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Codepromulgation thereof; provided, however, that Gamma may not in no event shall the Company or Parent or any of their respective Subsidiaries be compelled obligated to take commit to any action actions that would, individually or refrain from taking any action under any other provision in combination, materially reduce the reasonably anticipated benefits of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action transactions contemplated by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Westport Innovations Inc), Agreement and Plan of Merger (Fuel Systems Solutions, Inc.)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject conditions herein provided, the Company and Parent shall use their commercially reasonable efforts, to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions Merger as promptly as practicable, including using reasonable best efforts to (ii) obtain the Real Estate Purchase Required Consents and all necessary actions expeditiously from any Governmental Authorities or non-actionsthird parties any consents, licenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order made by Parent or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingMerger, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in as promptly as practicable, make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance HSR Act and any related governmental request thereunder and (C) any other applicable Law; provided that Parent and the Company shall cooperate with each other in connection with the making of doubt, the parties agree that any actionall such filings, including entering into any consent decreeproviding copies of all such documents to the non-filing party and its advisors prior to filing and, hold separate order if requested, accepting all reasonable additions, deletions or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or changes suggested by the Company or any of its Subsidiaries as of other party in connection therewith. From the date of this Agreement until the Effective Time, each party shall be considered “material” for promptly notify the purposes other party in writing of any pending or, to the knowledge of the preceding sentence. With regard to first party, threatened action, proceeding or investigation by any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, Authority or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take other person (i) challenging or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those seeking material damages in connection with the HSR Act and applicable Gaming Laws), unless Merger or the effectiveness conversion of such agreement or action is conditioned upon the Closing. Notwithstanding anything Company Common Stock into Parent ADSs pursuant to the contrary Merger or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent or Parent's subsidiaries to own or operate all or any portion of the businesses or assets of the Company, which in this Agreementeither case would have a Company Material Adverse Effect prior to or after the Effective Time, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under Parent Material Adverse Effect after the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Elan Corp PLC), Agreement and Plan of Merger (Sano Corp)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law parties hereto will use their respective reasonable best efforts to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement and to cause the conditions to the Merger set forth in Article VI to be satisfied, including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following: (i) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities or other Persons necessary in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in consummation of the transactions contemplated by this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionAgreement, including entering into the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid a Proceeding by, any consent decree, hold separate order Governmental Authority or other arrangement, that (i) requires Persons necessary in connection with the sale, divestiture, licensing or disposition of any material assets or businesses consummation of the Acquirorstransactions contemplated by this Agreement, including the Surviving Corporation, the Company or any of their SubsidiariesMerger, (ii) materially limits the conduct defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Acquirors transactions contemplated by this Agreement, including the Merger, performed or their Affiliates consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (including, iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall promptly (and in no event later than ten (10) days after the Closingdate of this Agreement, unless otherwise agreed to by the Surviving Corporation parties) make its respective filings under the HSR Act, and thereafter make any other applications and filings as reasonably determined by the Company and its Subsidiaries) or the Acquirors’ freedom of action Parent under other applicable Antitrust Laws with respect toto the transactions contemplated by this Agreement as promptly as reasonably practicable (and in no event later than thirty (30) days after the date of this Agreement, or its ability unless otherwise agreed to retain, by the parties) in draft form. The Company and Parent shall each pay fifty percent (50%) of all filing fees and other charges for the Company’s Subsidiaries or filings required under any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businessesAntitrust Law; provided, or (iii) would be expected to have an adverse impact in any material respect on the Acquirorsthat, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For for the avoidance of doubt, the parties agree that any actionCompany and Parent shall each bear its own legal fees, including entering into any consent decreeconsultant fees, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations incurred in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders any applications and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and filings required under applicable Gaming Antitrust Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Welbilt, Inc.), Agreement and Plan of Merger (Middleby Corp)
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject to the conditions set forth in this Agreement, Acquiror will each of the parties agrees to use its reasonable best efforts (i) to take, or to cause to be taken, all actions that are appropriate action, and to do, or to cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement, including using reasonable best efforts unless the Board of the Directors of the Company has withdrawn its recommendation of this Agreement in compliance herewith, (ii) to obtain the Real Estate Purchase Required Consents and all necessary actions from any Governmental Authorities any Permits or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement Orders required to the contrary, in no event shall the Acquirors, Merger Sub be obtained by Acquiror or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution, delivery and performance of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingtransactions contemplated hereby, after including the ClosingMerger, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance HSR Act (C) Foreign Competition Laws and (D) any other applicable Law; provided that Acquiror and the Company will cooperate with each other in connection with the making of doubt, the parties agree that any actionall such filings, including entering into providing copies of all such documents to the nonfiling party and its advisors prior to filings and, if requested, will accept all reasonable additions, deletions or changes suggested in connection therewith and (iv) to furnish all information required for any consent decree, hold separate order application or other arrangementfiling to be made pursuant to any applicable Law or any applicable Regulations of any Governmental Authority (including all information required to be included in the Proxy Statement or the Registration Statement) in connection with the transactions contemplated by this Agreement provided, however, that would require either neither Acquiror nor any of its Affiliates shall be under any obligation to divest make proposals, execute or hold separate, carry out agreements or agree submit to divest Orders providing for the sale or hold separateother disposition or holding separate (through the establishment of a trust or otherwise) of any material (in nature or amount) assets or categories of material (in nature or amount) assets of Acquiror, any casino owned by such Acquiror of its Affiliates or by the Company or the holding separate of the shares of Company Common Stock or imposing or seeking to impose any material limitation on the ability of Acquiror or any of its Subsidiaries as or Affiliates to conduct their business or own such assets or to acquire, hold or exercise full rights of ownership of the date shares of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Common Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (America Online Inc), Agreement and Plan of Merger (America Online Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject Subject to the conditions set forth in this AgreementSection 5.03, each of Parent and the parties agrees to Company shall (and Parent shall cause each of its affiliated investment funds to) use its reasonable best efforts to take, or consummate the Transactions and to cause the conditions set forth in Article VI to be takensatisfied. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub’s affiliated investment funds to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) promptly obtain all actions that are necessaryor nonactions, proper consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable under this Agreementin connection with the consummation of the Transactions, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions (ii) as promptly as practicable, including using reasonable best efforts to obtain and in any event within ten Business Days after the Real Estate Purchase Required Consents date of this Agreement, make and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those advisable in connection with the consummation of the Transactions, including the filings required of the parties or their “ultimate parent entities” under the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates other Antitrust Law, and promptly make any further filings pursuant thereto that may be obligated to take any actionnecessary or advisable, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order defend all lawsuits or other arrangementlegal, that would require either Acquiror regulatory, administrative or other Proceedings to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company which it or any of its Subsidiaries as affiliates is a party challenging or affecting this Agreement or the consummation of the date Transactions, in each case until the issuance of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entitya final, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action non-appealable order with respect to its business each such lawsuit or operations other Proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in connection with obtaining all necessary actions or each case until the issuance of a final, non-actionsappealable order with respect thereto, waivers, consents, approvals, orders and authorizations from (v) seek to resolve any objection or assertion by any Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such actionTransactions. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).37
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (West Marine Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders Orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming LawsAct). Notwithstanding anything The parties agree that the use of “reasonable best efforts” in this Agreement Section 5.5 shall include taking any and all steps necessary to obtain approval of the consummation of the Transactions by any Governmental Entity responsible for antitrust matters, including taking all steps necessary to avoid or eliminate each and every legal impediment under any applicable antitrust Law that may be asserted by any Governmental Entity or any other Person so as to enable the parties hereto to close the Transactions as promptly as reasonably practicable, and in any event prior to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionOutside Date, including entering into any (1) proposing, negotiating, accepting, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture or disposition of either party or its Subsidiaries’ assets, properties or businesses; (2) the entrance into, or the amendment, modification or termination of, any Contracts or other arrangements; and (3) other remedies in order to obtain such approvals and to avoid the entry of, and to avoid the commencement of litigation or other Proceedings seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other arrangementapplicable Law in any suit or other Proceeding, that (i) requires which would otherwise have the sale, divestiture, licensing effect of materially delaying or disposition of any material assets or businesses preventing the consummation of the AcquirorsTransaction. In addition, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation Parent and the Company will, and its Subsidiarieswill cause each of their Subsidiaries to, defend through litigation on the merits so as to enable the parties hereto to close the Transaction as promptly as reasonably practicable (and in any event prior to the Outside Date) any claim asserted in court or an administrative or other tribunal by any Governmental Entity or other Person under applicable Laws to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) or other applicable Law that would prevent or materially delay the Acquirors’ freedom of action with respect toClosing from occurring as promptly as reasonably practicable; provided, or its ability to retainhowever, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businessesthat, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For for the avoidance of doubt, such litigation shall in no way limit the obligations of the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by comply with their obligations under the Company or any of its Subsidiaries as of the date terms of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the ClosingSection 5.5. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action foregoing or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement Agreement, no party will be required to agree to any sale, transfer, license, separate holding, divestiture or other disposition of, or to any prohibition of or any limitation on the extent acquisition, ownership, operation, effective control or exercise of full rights of ownership, or other modification of rights in respect of, any assets or businesses or other remedy that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach conditioned on the consummation of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Transaction.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Railcar Industries, Inc.), Agreement and Plan of Merger (Icahn Enterprises Holdings L.P.)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and conditions herein provided, the Company, Parent and Merger Sub shall (i) use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and make, as promptly as reasonably practicable, all necessary filings and submissions with, any Governmental Entity or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement; provided that in no event shall the Company or any of the Company Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to obtain any consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement under any contract other than de minimis amounts or amounts that are advanced or reimbursed substantially simultaneously by Parent, (ii) use reasonable best efforts to (A) avoid a suit, action, petition to deny, objection, proceeding or investigation, whether judicial or administrative and whether brought by a Governmental Entity or any third party, and (B) subject to Section 8.5(b), avoid the entry of, or to effect the dissolution of, any injunction, stay, temporary restraining order or other order in any such suit, action, petition to deny, objection, proceeding or investigation, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, (iii) use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, Permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties in connection with the execution and delivery of this Agreement and related agreements and consummation of the transactions contemplated hereby and thereby and (B) making all such filings and timely seeking all such consents, approvals, Permits, notices or authorizations, (iv) use reasonable best efforts to cause the conditions to the Merger set forth in this Agreement, each of the parties agrees Article IX to be satisfied as promptly as reasonably practicable and (v) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, the Real Estate Purchase Agreement and applicable Law cooperate with each other in order to do, all other things necessary or appropriate to consummate and make effective the Transactions transactions contemplated hereby as promptly soon as practicable; provided that for purposes of this Section 8.5(a), including using “reasonable best efforts to obtain efforts” shall include taking the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those set forth in Section 8.5(a) of the Parent Disclosure Letter. In connection with the HSR Act foregoing, the Company, on the one hand, will provide Parent (or Parent’s outside counsel, where appropriate), and applicable Gaming LawsParent, on the other hand, will provide the Company (or Company’s outside counsel, where appropriate). Notwithstanding anything in this Agreement to , with copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the contrary, in no event shall the Acquirors, Merger Sub substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective Affiliates be obligated to take any actionstaffs, including entering into any consent decreeon the other hand, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreementtransactions contemplated hereby. Prior to submitting or making any such correspondence, taken as a whole. For the avoidance filing or communication to any such Governmental Entity or members of doubttheir respective staffs, the parties agree shall first provide the other party with a copy of such correspondence, filing or communication in draft form and give such other party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Entities, and shall consider and take into account all reasonable comments timely made by the other party with respect thereto. To the extent permitted by Applicable Law, each of the parties shall ensure that the other party is given the opportunity to attend any action, including entering into any consent decree, hold separate order meetings with or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to appearances before any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action Entity with respect to its business the transactions contemplated by this Agreement. Parent shall have principal responsibility for devising, directing, and implementing the strategy for obtaining any necessary approval, for responding to any request, inquiry, or operations in connection with obtaining investigation (including directing the timing, nature, and substance of all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Lawssuch responses), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything and for leading all meetings and communications with any Governmental Entity that has authority to the contrary in this Agreement, Gamma shall have no obligation to take enforce any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Antitrust Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Omnicare Inc), Agreement and Plan of Merger (CVS HEALTH Corp)
Appropriate Action; Consents; Filings. (a) Upon The Company and the terms and subject to the conditions set forth in this Agreement, Acquiror will each of the parties agrees to use its all reasonable best efforts (i) to take, or to cause to be taken, all actions that are appropriate action, and to do, or to cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement, including using reasonable best efforts (ii) to obtain from any Governmental Authorities any Permits or Orders required to be obtained by the Real Estate Purchase Required Consents and all necessary actions Acquiror or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution, delivery and performance of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingtransactions contemplated hereby, after including the ClosingMerger, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance of doubtHSR Act, and (C) any other applicable Law; provided that the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by and the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent will cooperate with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those each other in connection with the HSR Act making of all such filings, including providing copies of all such documents to the nonfiling party and its advisors prior to filings and, if requested, will accept all reasonable additions, deletions or changes suggested in connection therewith. The Company and the Acquiror will furnish all information required for any application or other filing to be made pursuant to any applicable Gaming Laws), unless Law or any applicable Regulations of any Governmental Authority (including all information required to be included in the effectiveness Proxy Statement or the Registration Statement) in connection with the transactions contemplated by this Agreement. (b) Each of the Company and the Acquiror will give prompt notice to the other of (i) any notice or other communication from any Person alleging that the consent of such agreement Person is or action is conditioned upon may be required in connection with the Closing. Notwithstanding anything Merger, (ii) any notice or other communication from any Governmental Authority in connection with the Merger, (iii) any actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting the Company, the Acquiror or their respective Subsidiaries that relate to the contrary in this Agreementconsummation of the Merger; (iv) the occurrence of a default or event that, Gamma shall have no obligation to take with notice or lapse of time or both, will become a default under any action Material Contract of the Acquiror or refrain from taking Material Contract of the Company; and (v) any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm change that such action or inaction would be is reasonably likely to materially impair Gamma have a Material Adverse Effect on the Company or its direct the Acquiror or indirect owner from continuing is likely to be treated as a real estate investment trust under delay or impede the Code; provided, however, that Gamma may not be compelled ability of either the Acquiror or the Company to take any action or refrain from taking any action under any other provision of consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. (c) The Acquiror Companies and the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed Company agree to be in breach of this Agreement solely due cooperate and use all reasonable efforts vigorously to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).contest and resist any
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Unitrode Corp), Agreement and Plan of Merger (Unitrode Corp)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, each of the Company, on one hand, and Parent and Merger Sub, on the other hand, shall (i) use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or non-actions by, and make as promptly as practicable all necessary notifications to and filings and submissions with, any Governmental Entity pursuant to Applicable Law or any third party as set forth in Schedule 8.5; (ii) use reasonable best efforts to (A) avoid a suit, action, petition to deny, objection, proceeding or investigation, whether judicial or administrative and whether brought by a Governmental Entity or any third party, and (B) avoid the entry of, or to effect the dissolution, lifting or rescinding of, any injunction, stay, restraining order or other order in any such suit, action, petition to deny, objection, proceeding or investigation, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, (iii) use reasonable best efforts to cooperate with each other in (1) determining which filings or responses to requests for additional information or documentary material from a Governmental Entity are required to be made prior to the Effective Time with, and which registrations, consents, approvals, Permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties agrees in connection with the execution and delivery of this Agreement and related agreements and consummation of the transactions contemplated hereby and thereby and (2) timely making all such filings and responses and timely seeking all such consents, approvals, Permits, notices or authorizations; provided, that the Company shall not make any such filing or response or seek any such consent, approval, Permit, notice or authorization without the prior consent of Parent, (iv) use reasonable best efforts to cause the conditions to the Merger set forth in Article IX to be satisfied as promptly as reasonably practicable and (v) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, and cooperate with each other in order to do, all other things necessary or appropriate to consummate the transactions contemplated hereby as soon as practicable. At the request of Parent and for the purpose of obtaining the HSR Antitrust Clearance, PRC Antitrust Clearance, or the CFIUS Approval, the Real Estate Purchase Agreement and applicable Law Company shall agree to consummate and make effective the Transactions as promptly as practicabledivest, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions hold separate or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub otherwise take or any of their respective Affiliates be obligated commit to take any action, including entering into any consent decree, hold separate order or other arrangement, action that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, services or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance assets of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any Company Subsidiary, provided that the effectiveness or consummation of its Subsidiaries as such action is conditional on the consummation of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the ClosingMerger. Notwithstanding anything to the contrary in this Agreement, Gamma in no event shall have no obligation Parent, Merger Sub or any of their respective Subsidiaries or Affiliates, be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to make payments or enter into any commercial arrangement, or commit, or commit to take, any action (A) the effectiveness or refrain from taking any action pursuant to this Section 6.5(aconsummation of which is not conditional on the consummation of the Merger or (B) if it obtains a legal opinion from a nationally recognized law firm that such action that, in the judgement of Parent acting in good faith, individually or inaction in the aggregate is or would reasonably be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing expected to be treated materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a real estate investment trust under whole) to Parent, Merger Sub, any of their respective Affiliates or the Code; providedSurviving Corporation, however, that Gamma may not be compelled to take any action either before or refrain from taking any action under any other provision of this Agreement after giving effect to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(bMerger (a “Burdensome Condition”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Multi Fineline Electronix Inc)
Appropriate Action; Consents; Filings. (a) Upon Each of Tasty Baking, Parent and Purchaser has agreed to use their respective reasonable best efforts to consummate and make effective the terms transactions contemplated by the Merger Agreement and subject to cause the conditions to the conditions set forth Offer and the Merger to be satisfied, including (i) obtaining all necessary permits, waivers, consents, approvals and actions from governmental authorities, making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any governmental authority, (ii) obtaining all necessary and material consents or waivers from third parties, (iii) contesting and resisting any legal action or proceeding challenging the Offer, the Merger or any other transaction contemplated by the Merger Agreement and (iv) executing and delivering any additional instruments necessary to consummate the Offer and the Merger and to fully carry out the purposes of the Merger Agreement. Tasty Baking, Parent and Purchaser each agreed to promptly (and in this no event later than 10 business days following the date of the Merger Agreement) make and not withdraw their respective filings, and thereafter make any other required submissions under, the HSR Act with respect to the transactions contemplated by the Merger Agreement, each including the Offer, the Merger and the Top-Up Option. Public Announcements. Parent, Purchaser and Tasty Baking have agreed not to make any press release or other public statement regarding the Offer, the Merger and the other transactions contemplated by the Merger Agreement without the prior consultation of the parties agrees other, except as required by applicable law, court process or by obligations pursuant to any listing agreement with any national securities exchange. If a party is required to make a press release or announcement, it agreed to use its reasonable best efforts to take, or cause allow the other party reasonable time to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement review and applicable Law to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect comment on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, release or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect announcement prior to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)issuance.
Appears in 1 contract
Samples: Merger Agreement (Flowers Foods Inc)
Appropriate Action; Consents; Filings. (a) Upon In accordance with the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law parties hereto will use their respective reasonable best efforts to consummate and make effective the Transactions transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VI (Conditions to the Merger) to be satisfied as promptly expeditiously as practicablepossible, including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following: (i) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders Consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, 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. Each of the parties hereto shall promptly (A) and in any event within ten (10) Business Days of the date hereof, make 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 to be made with the Governmental Authorities set forth on Schedule I under applicable Antitrust Laws with respect to the transactions contemplated hereby, including the Merger, (B) use its respective reasonable best efforts to comply at the earliest 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 by any other Governmental Authority under any Antitrust Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger and applicable Gaming (C) act in good faith and cooperate with the other party in connection with any such filings (including, if requested by the other party, 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). In taking the foregoing actions, each of the Company and Parent shall act reasonably and as promptly and expeditiously as possible. Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirorsobtaining any consents, Merger Sub approvals or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors waivers from Third Parties pursuant to this Agreement and Section 5.3(a)(ii) above or otherwise shall not be a condition to the Real Estate Purchase Agreement, taken as a whole. For the avoidance obligations of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with consummate the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Merger.
Appears in 1 contract
Samples: Agreement and Plan of Merger (RR Donnelley & Sons Co)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law parties hereto will use their respective reasonable best efforts to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement and to cause the conditions to the Merger set forth in Article VI to be satisfied, including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following: (i) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities or other Persons necessary in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in consummation of the transactions contemplated by this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionAgreement, including entering into the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid a Proceeding by, any consent decree, hold separate order Governmental Authority or other arrangement, that (i) requires Persons necessary in connection with the sale, divestiture, licensing or disposition of any material assets or businesses consummation of the Acquirorstransactions contemplated by this Agreement, including the Surviving Corporation, the Company or any of their SubsidiariesMerger, (ii) materially limits the conduct defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Acquirors transactions contemplated by this Agreement, including the Merger, performed or their Affiliates consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (including, iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall promptly (and in no event later than ten (10) days after the Closingdate of this Agreement, unless otherwise agreed to by the Surviving Corporation parties) make its respective filings under the HSR Act, and thereafter make any other applications and filings as reasonably determined by the Company and its Subsidiaries) or the Acquirors’ freedom of action Parent under other applicable Antitrust Laws with respect toto the transactions contemplated by this Agreement as promptly as reasonably practicable (and in no event later than thirty (30) days after the date of this Agreement, or its ability unless otherwise agreed to retain, by the parties) in draft form. The Company and Parent shall each pay fifty percent (50%) of all filing fees and other charges for the Company’s Subsidiaries or filings required under any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businessesAntitrust Law; provided, or (iii) would be expected to have an adverse impact in any material respect on the Acquirorsthat, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For for the avoidance of doubt, the parties agree that any actionCompany and Parent shall each bear its own legal fees, including entering into any consent decreeconsultant fees, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations incurred in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders any applications and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and filings required under applicable Gaming Antitrust Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).42
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, the Company and each of the parties agrees to Parent Parties shall, and shall cause their respective Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or pursuant to any Contract to consummate and make effective the Transactions effective, as promptly as reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including using reasonable best efforts (i) taking all actions necessary to obtain cause the Real Estate Purchase Required Consents conditions to the Closing set forth in Article VIII to be satisfied, (ii) preparing and filing any applications, notices, registrations and requests as may be required or advisable to be filed with or submitted to any Governmental Authority in order to consummate the transactions contemplated by this Agreement, (iii) obtaining all necessary or advisable actions or non-actionsnonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities or other Persons necessary in connection with the HSR Act consummation of the Merger and applicable Gaming Laws). Notwithstanding anything in the other transactions contemplated by this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the contrary, in no event shall consummation of the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionand the other transactions contemplated by this Agreement, including entering into any (1) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or other arrangementotherwise, that (i) requires the saleconduct of business restrictions, divestiture, licensing a sale or disposition of any material such assets or businesses as are required to be divested or a license or grant of commercialization rights to businesses, product lines, fields of use, divisions, business arrangements, Contracts, assets or interests therein of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates and its Subsidiaries (including, after the Closing, the Surviving Corporation Entity and its Subsidiaries), (2) amending any venture or other arrangement of the Company and its Subsidiaries (including, after the Closing, the Surviving Entity and its Subsidiaries), (3) cooperating with each other and using their respective reasonable best efforts to contest and resist any Action and to have vacated, lifted, reversed or overturned any Order that may result from such Action, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Acquirors’ freedom of action transactions contemplated by this Agreement, (4) cooperating with each other using their respective reasonable best efforts to obtain CFIUS Approval, and (5) otherwise taking or committing to take actions after the Closing with respect toto one or more of the businesses, product lines, fields of use, or assets of the Company and its ability to retainSubsidiaries (including, after the Closing, the Surviving Entity and its Subsidiaries); provided, that in no event shall Parent, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets respective Affiliates be required to proffer, consent to or businesses, agree to or effect any such action described in this clause (iii) would be expected unless such action is conditioned upon the Closing of the Merger, (iv) subject to Section 7.7(b), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have an adverse impact in any material stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect on to the AcquirorsMerger so as to enable the Closing to occur as soon as reasonably possible, their Affiliates and their Subsidiaries’ respective businesses, (v) executing and delivering any additional instruments necessary or advisable to consummate the businesses to be acquired Merger and the other transactions contemplated by the Acquirors pursuant to this Agreement and to fully carry out the Real Estate Purchase purposes of this Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company Nothing in this Section 7.6 or any of its Subsidiaries as of the date other provision of this Agreement shall be considered “material” for require the purposes Parent Parties or any Affiliates of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party Parent Parties to take or agree to take any action with respect to any direct or indirect portfolio companies (as such term is commonly understood in the private equity industry) or any investment funds or vehicles affiliated with, or managed or advised by, one or more Affiliates of the Parent Parties, including selling, divesting, conveying, holding separate, or otherwise limiting its business freedom or action with respect to any assets, rights, businesses, operations in connection or interest therein, of any such portfolio companies or investment funds or vehicles, except with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders respect to the Company and authorizations from Governmental Entities its Subsidiaries (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon following the Closing, the Surviving Entity and its Subsidiaries). Notwithstanding anything In addition to the contrary in this Agreementforegoing, Gamma neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, shall have no obligation take any action, or fail to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, howeveraction, that Gamma may not is intended to, or has (or would reasonably be compelled expected to take any action have) the effect of, materially preventing, impairing, delaying or refrain from taking any action otherwise materially adversely affecting the consummation of the Merger or the ability of such Party to fully perform its obligations under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Indus Realty Trust, Inc.)
Appropriate Action; Consents; Filings. (a) Upon the terms Each Target Company, Parent and subject to the conditions set forth in this Agreement, Parent Sub shall each of the parties agrees to use its reasonable best efforts to to: (i) take, or cause to be taken, all actions that are appropriate action, and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionslicenses, permits, waivers, consents, approvals, authorizations or orders required to be obtained or made by Parent, Parent Sub or any Target Company in connection with the authorization, execution and authorizations from Governmental Entities (delivery of this Agreement and the consummation of the transactions contemplated herein, including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or Merger; (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) Delaware Law and Indiana Law (including holding a shareholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, taken as a wholeif any, and any other applicable federal or state securities laws, and (B) the HSR Act, and (C) any other applicable Law; provided that Parent, Parent Sub and the Target Companies shall THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED cooperate with each other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws)making of all such filings, unless the effectiveness including providing copies of all such agreement or action is conditioned upon the Closing. Notwithstanding anything documents to the contrary non-filing party and its advisors prior to filing and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. Each Target Company, Parent and Parent Sub shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and conditions herein provided, the Company, Parent and Merger Sub shall (i) use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and make, as promptly as reasonably practicable, all necessary filings and submissions with, any Governmental Entity or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement; provided that in no event shall the Company or any of the Company Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to obtain any consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement under any contract other than de minimis amounts or amounts that are advanced or reimbursed substantially simultaneously by Parent, (ii) use reasonable best efforts to (A) avoid a suit, action, petition to deny, objection, proceeding or investigation, whether judicial or administrative and whether brought by a Governmental Entity or any third party, and (B) subject to Section 8.5(b), avoid the entry of, or to effect the dissolution of, any injunction, stay, temporary restraining order or other order in any such suit, action, petition to deny, objection, proceeding or investigation, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, (iii) use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, Permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties in connection with the execution and delivery of this Agreement and related agreements and 52 consummation of the transactions contemplated hereby and thereby and (B) making all such filings and timely seeking all such consents, approvals, Permits, notices or authorizations, (iv) use reasonable best efforts to cause the conditions to the Merger set forth in this Agreement, each of the parties agrees Article IX to be satisfied as promptly as reasonably practicable and (v) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, the Real Estate Purchase Agreement and applicable Law cooperate with each other in order to do, all other things necessary or appropriate to consummate and make effective the Transactions transactions contemplated hereby as promptly soon as practicable; provided that for purposes of this Section 8.5(a), including using “reasonable best efforts to obtain efforts” shall include taking the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those set forth in Section 8.5(a) of the Parent Disclosure Letter. In connection with the HSR Act foregoing, the Company, on the one hand, will provide Parent (or Parent’s outside counsel, where appropriate), and applicable Gaming LawsParent, on the other hand, will provide the Company (or Company’s outside counsel, where appropriate), with copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective staffs, on the other hand, with respect to this Agreement and the transactions contemplated hereby. Prior to submitting or making any such correspondence, filing or communication to any such Governmental Entity or members of their respective staffs, the parties shall first provide the other party with a copy of such correspondence, filing or communication in draft form and give such other party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Entities, and shall consider and take into account all reasonable comments timely made by the other party with respect thereto. To the extent permitted by Applicable Law, each of the parties shall ensure that the other party is given the opportunity to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement. Parent shall have principal responsibility for devising, directing, and implementing the strategy for obtaining any necessary approval, for responding to any request, inquiry, or investigation (including directing the timing, nature, and substance of all such responses), and for leading all meetings and communications with any Governmental Entity that has authority to enforce any Antitrust Law. (b) Notwithstanding anything in this Agreement to the contrary, (i) Parent shall have no obligation to litigate or contest any court proceeding or administrative litigation brought by any Governmental Entity under any Antitrust Law; and (ii) in no event shall the Acquirors, Merger Sub or any of their respective Affiliates will Parent be obligated to take any action, including entering enter into any consent decree, hold separate order or other arrangement, that (i) requires the sale, to make any divestiture, licensing to accept any operational restriction, or disposition to take any other action that, in the judgment of any material assets Parent, would be reasonably expected to limit or businesses impair the right of the Acquirors, Parent to own or operate its business or to obtain or enjoy any of the Surviving Corporation, rights or benefits of the Company’s or the Company or Subsidiaries’ business(es). The Company shall not (and shall not cause any of their Subsidiariesthe Company Subsidiaries to), (ii) materially without Parent’s written consent, commit to take any action that limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ Parent’s freedom of action with respect toto its business, or its Parent’s ability to retain, obtain or enjoy the Company and rights or benefits of the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Company Subsidiaries’ respective businessesbusiness(es). (c) Without limiting the generality of Section 8.5(a) and Section 8.5(b) above, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as within five (5) Business Days of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental EntityAgreement, the Company Company, Parent and Merger Sub shall notapproach the Federal Trade Commission and the United States Department of Justice 53 to discuss the Merger and the other transactions contemplated by this Agreement. As promptly as reasonably practicable thereafter, without the Acquirors’ written consent, which may be withheld by parties shall make any required filings pursuant to the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action HSR Act with respect to its business or operations in connection with obtaining the transactions contemplated hereby, and shall thereafter promptly respond to all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations requests received from such Governmental Entities (including, without limitation, those in connection with for additional information or documentation. Any filing fees payable under the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything relating to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) transactions contemplated hereby shall be deemed to limit borne by Parent or Merger Sub, as applicable, but each party shall bear its own costs and expenses for the preparation of any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to such filing and any such response. Section 8.3(b).8.6
Appears in 1 contract
Samples: Iv Agreement and Plan of Merger
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreementherein, each of from the parties agrees to date hereof until the Closing Date, the Sellers and the Buyers shall use its their respective reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and do, or cause to be done, and to assist and cooperate with the other Parties in doing all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions transactions contemplated hereby as promptly as practicable, including (i) executing and delivering any additional instruments necessary, proper or advisable to consummate the transactions contemplated hereby, and to carry out fully the purposes of this Agreement, (ii) making all necessary Filings, and thereafter making any other required submissions, with respect to the transactions contemplated hereby required under any applicable Law and (iii) using reasonable best efforts to obtain all Consents of any Governmental Entity or third party necessary for the Real Estate Purchase Required Consents and all necessary actions or non-actionsconsummation of the transactions contemplated hereby, waivers, consents, approvals, orders and authorizations from Governmental Entities including providing Sellers within five (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in 5) Business Days of executing this Agreement information that Seller will include in the application to the contrary, in no event shall PRC Authorities to approve the Acquirors, Merger Sub or any equity transfer of their respective Affiliates be obligated Company to take any action, Buyers (including entering into any consent decree, hold separate order or other arrangement, that (i) requires but not limited to the sale, divestiture, licensing or disposition list of any material assets or businesses Buyer’s post Closing officers and directors of the Acquirors, Company); and (iv) Sellers shall cooperate with Buyers regarding the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct preparation of the Acquirors or their Affiliates (includingAssets in Sellers’ Glenrothes, Scotland facility to be shipped within 14 days after the ClosingClosing to Buyers’ facility and LUK shall provide Buyers access to the Glenrothes, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of Scotland facility up through the date of this Agreement shall be considered “material” shipment for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness limited purpose of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Codepreparation of Assets and shipment; provided, however, that Gamma may the Sellers shall not be compelled required to take commence any action litigation or refrain from taking offer or grant any action under accommodation (financial or otherwise) to any other provision of this Agreement third party. In addition to the extent that Gamma foregoing, the Buyers agree to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose consent or approval is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be sought in breach connection with the transactions contemplated hereby. The Buyers and the Sellers shall cooperate with each other in connection with the making of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing any Filings in accordance with this Section 6.5(a5.1(a), including providing copies of all such documents to the non-filing Party and its advisors prior to filing and discussing all reasonable additions, deletions or changes suggested in connection therewith. All fees payable to any Governmental Entity in connection with the Filings pursuant to this Section 5.1(a) shall be deemed paid by the Buyers. The Sellers and the Buyers shall furnish to limit each other all information required for any obligation the Acquirors may have application or other Filing to pay the Reverse Termination Fee be made pursuant to Section 8.3(b)the rules and regulations of any applicable Law in connection with the transactions contemplated hereby.
Appears in 1 contract
Samples: Share and Asset Purchase and Sale Agreement (Simclar Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject to the conditions set forth in this Agreement, each of the parties agrees to Parent shall use its their reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions Merger as promptly as practicable, including using reasonable best efforts to (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsexpeditiously from any Governmental Authorities any consents, licenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order made by Parent or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingMerger, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in as promptly as practicable, make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance HSR Act and any related governmental request thereunder and (C) any other applicable Law; provided that Parent and the Company shall cooperate with each other in connection with the making of doubt, the parties agree that any actionall such filings, including entering into any consent decreeproviding copies of all such documents to the non-filing party and its advisors prior to filing and, hold separate order if requested, accepting all reasonable additions, deletions or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or changes suggested by the Company or any of its Subsidiaries as of other party in connection therewith. From the date of this Agreement until the Effective Time, each party shall be considered “material” for promptly notify the purposes other party in writing of any pending or, to the knowledge of the preceding sentence. With regard to first party, threatened action, proceeding or investigation by any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, Authority or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take other person (i) challenging or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those seeking material damages in connection with the HSR Act and applicable Gaming Laws), unless Merger or the effectiveness conversion of such agreement the Company Common into Parent Common Stock or action is conditioned upon the Closing. Notwithstanding anything cash pursuant to the contrary in this Agreement, Gamma shall have no obligation Merger or (ii) seeking to take restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent or Parent's subsidiaries to own or operate all or any action portion of the businesses or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma assets of the Company or its direct Subsidiaries, which in either case would have a Company Material Adverse Effect prior to or indirect owner from continuing to be treated as after the Effective Time, or a real estate investment trust under Parent Material Adverse Effect after the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Effective Time.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to conditions of this Agreement (including the conditions limitations set forth in this AgreementSection 6.5), each of the parties agrees to hereto will use its their respective reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions as promptly as practicabletransactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied, including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following: (i) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities necessary in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in consummation of the transactions contemplated by this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionAgreement, including entering into the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid a Proceeding by, any consent decree, hold separate order or other arrangement, that (i) requires Governmental Authority necessary in connection with the sale, divestiture, licensing or disposition of any material assets or businesses consummation of the Acquirorstransactions contemplated by this Agreement, including the Surviving Corporation, the Company or any of their SubsidiariesMerger, (ii) materially limits the conduct obtaining of all other necessary consents, approvals or waivers from Third Parties, (iii) the defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Acquirors transactions contemplated hereby (“Merger Litigation”), including the Merger, performed or their Affiliates consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (includingiv) 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. Notwithstanding the foregoing, after obtaining any Third Party consents, approvals or waivers pursuant to Section 6.3(a)(ii) above shall not be considered a condition to the Closingobligations of Parent and Merger Sub to consummate the Merger. 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 Surviving Corporation right to consult on the settlement with respect to such Merger Litigation, and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect towill in good faith take such comments into account, or its ability and, no such settlement shall be agreed to retain, the Company and the Companywithout Parent’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or prior written consent (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses such consent not to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreementunreasonably withheld, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order conditioned or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(bdelayed).
Appears in 1 contract
Samples: Agreement and Plan of Merger
Appropriate Action; Consents; Filings. (a) Upon the terms The Company, Parent and subject to the conditions set forth in this Agreement, Parent Sub shall each of the parties agrees to use its reasonable best efforts to to: (i) take, or cause to be taken, all actions that are appropriate action, and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionslicenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (includingrequired to be obtained or made by Parent, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Parent Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (transactions contemplated herein, including, after the Closingwithout limitation, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or Merger; (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) Delaware Law and Maryland Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, taken as a whole. For the avoidance of doubtif any, the parties agree and any other applicable federal or state securities laws, and (B) any other applicable Law; provided that any actionParent, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, Parent Sub and the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent cooperate with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those each other in connection with the HSR Act and applicable Gaming Laws)making of all such filings, unless the effectiveness including providing copies of all such agreement or action is conditioned upon the Closing. Notwithstanding anything documents to the contrary non-filing party and its advisors prior to filing and, if requested, accepting all reasonable THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. additions, deletions or changes suggested in connection therewith. The Company, Parent and Parent Sub shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject conditions herein provided, the Company, Parent, Merger Sub and their respective Affiliates shall (i) take all steps reasonably necessary, and proceed diligently and in good faith, and use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers, licenses, Permits, franchises, certificates, registrations, variances, exemptions and authorizations of, and actions or nonactions by, and make as promptly as practicable all necessary filings, submissions and declarations with, any Governmental Entity or other third party necessary in connection with the consummation of the transactions contemplated by this Agreement, including, if applicable, requesting expedited treatment for any such filings, submissions and declarations, (ii) use reasonable best efforts to (A) avoid a claim, suit, petition to deny, objection, proceeding, investigation or other Legal Action, whether judicial or administrative and whether brought by a Governmental Entity or other third party, and (B) avoid the entry of, or to effect the dissolution of, any injunction, stay, temporary restraining order or other Order in any such claim, suit, petition to deny, objection, proceeding, investigation or other Legal Action, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, including using reasonable best efforts to avoid or eliminate any impediment under any Applicable Law, or any regulatory and operational authorizations and arrangements necessary to own or operate the assets of the Company and the Company Subsidiaries that may be asserted by any Governmental Entity (including the United States Department of Justice, Antitrust Division or the Federal Trade Commission) or other third party, (iii) use reasonable best efforts to cooperate with each other in (A) determining which material filings, submissions and declarations are required to be made prior to the Effective Time with, and which material consents, approvals, waivers, licenses, permits, franchises, certificates, registrations, variances, exemptions or authorizations, actions or non-actions, are required to be obtained prior to the Effective Time from, Governmental Entities or other third parties in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and thereby, and (B) timely making all such filings, submissions and declarations and timely seeking all such consents, approvals, waivers, licenses, permits, franchises, certificates, registrations, variances, exemptions or authorizations, actions or non-actions, (iv) use reasonable best efforts to cause the conditions to the Merger set forth in this Agreement, each of the parties agrees ARTICLE IX to be satisfied as promptly as reasonably practicable and (v) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, the Real Estate Purchase Agreement and applicable Law cooperate with each other in order to do, all other things necessary or appropriate to consummate and make effective the Transactions transactions contemplated hereby as promptly soon as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in . In connection with the HSR Act foregoing, the Company, on the one hand, will provide Parent, and applicable Gaming Laws)Parent, on the other hand, will provide the Company, or, as appropriate, each of Parent’s counsel or the Company’s counsel, with copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective staffs, on the other hand, with respect to this Agreement and the transactions contemplated hereby. Prior to submitting or making any such material correspondence, filing or communication to any such Governmental Entity or members of their respective staffs, the parties shall first provide the other party or its counsel with a copy of such correspondence, filing or communication in draft form and give such other party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Entities, and shall consider and take account of all reasonable comments timely made by the other party with respect thereto. To the extent not prohibited by Applicable Law and to the extent permitted by the Governmental Entity, each of the parties shall ensure that the other party is given the opportunity to attend any substantive meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contraryforegoing, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or Subsidiaries be required to pay, prior to the Acquirors’ freedom of action with respect toEffective Time, or its ability to retainany fee, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order penalty or other arrangement, that would require either Acquiror to divest consideration or hold separate, or agree to divest or hold separate, incur any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those liability in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action Agreement under any contract other provision of this Agreement to the extent than de minimis amounts or amounts that Gamma is excused from taking such action are advanced or refraining from taking such action reimbursed substantially simultaneously by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lifepoint Health, Inc.)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject conditions herein provided, the Company, Parent and Merger Sub shall (i) use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and make as promptly as practicable all necessary filings and submissions with, any Governmental Entity or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement; provided, that in no event shall the Company or any of the Company Subsidiaries or Parent or Merger Sub be required to pay any fee, penalty or other consideration to obtain any consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement under any contract other than de minimis amounts, (ii) use reasonable best efforts to (A) avoid a suit, action, petition to deny, objection, proceeding or investigation, whether judicial or administrative and whether brought by a Governmental Entity or any third party, and (B) avoid the entry of, or to effect the dissolution of, any injunction, stay, temporary restraining order or other order in any such suit, action, petition to deny, objection, proceeding or investigation, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, (iii) use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, Permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties in connection with the execution and delivery of this Agreement and related agreements and consummation of the transactions contemplated hereby and thereby and (B) timely making all such filings and timely seeking all such consents, approvals, Permits, notices or authorizations, (iv) use reasonable best efforts to cause the conditions to the Merger set forth in this Agreement, each of the parties agrees Article IX to be satisfied as promptly as reasonably practicable and (v) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, the Real Estate Purchase Agreement and applicable Law cooperate with each other in order to do, all other things necessary or appropriate to consummate and make effective the Transactions transactions contemplated hereby as promptly soon as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in . In connection with the HSR Act foregoing, the Company, on the one hand, will provide Parent, and applicable Gaming Laws). Notwithstanding anything in this Agreement to Parent, on the contraryother hand, in no event shall will provide the AcquirorsCompany, Merger Sub with copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective Affiliates be obligated to take any actionstaffs, including entering into any consent decreeon the other hand, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreementtransactions contemplated hereby. Prior to submitting or making any such correspondence, taken as a whole. For the avoidance filing or communication to any such Governmental Entity or members of doubttheir respective staffs, the parties agree shall first provide the other party with a copy of such correspondence, filing or communication in draft form and give such other party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Entities, and shall consider and take account of all reasonable comments timely made by the other party with respect thereto. To the extent permitted by Applicable Law, each of the parties shall ensure that the other party is given the opportunity to attend any action, including entering into any consent decree, hold separate order meetings with or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to appearances before any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action Entity with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fisher Communications Inc)
Appropriate Action; Consents; Filings. (a) Upon In accordance with the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law parties hereto will use their respective reasonable best efforts to consummate and make effective the Transactions transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VI (Conditions to the Merger) to be satisfied as promptly expeditiously as practicablepossible, including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following: (i) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders Consents and authorizations approvals from Governmental Entities (including, without limitation, those Authorities necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, 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. Each of the parties hereto shall promptly (A) and in any event within five (5) Business Days of the date hereof, make 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 to be made with any Governmental Authorities as required under applicable Antitrust Laws with respect to the transactions contemplated hereby, including the Merger, (B) use its respective reasonable best efforts to comply at the earliest 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 by any other Governmental Authority under any Antitrust Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger and applicable Gaming (C) act in good faith and cooperate with the other party in connection with any such filings (including, if requested by the other party, 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). In taking the foregoing actions, each of the Company and Parent shall act reasonably and as promptly and expeditiously as possible. Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirorsobtaining any consents, Merger Sub approvals or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors waivers from Third Parties pursuant to this Agreement and Section 5.3(a)(ii) above or otherwise shall not be a condition to the Real Estate Purchase Agreement, taken as a whole. For the avoidance obligations of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with consummate the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Merger.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject to the conditions set forth in this Agreement, each of the parties agrees to Parent shall use its their reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions Merger as promptly as practicable, including using reasonable best efforts to (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, expeditiously from any Governmental Authorities waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order made by Parent or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingMerger, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in as promptly as practicable, make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance HSR Act and any related governmental request thereunder and (C) any other applicable Law; provided that Parent and the Company shall cooperate with each other in connection with the making of doubt, the parties agree that any actionall such filings, including entering into any consent decreeproviding copies of all such documents to the non-filing party and its advisors prior to filing and, hold separate order if requested, accepting all reasonable additions, deletions or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or changes suggested by the Company or any of its Subsidiaries as of other party in connection therewith. From the date of this Agreement until the Effective Time, each park shall be considered “material” for promptly notify the purposes other party in writing of any pending or, to the knowledge of the preceding sentence. With regard to first park, threatened action, proceeding or investigation by any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, Authority or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take other person (i) challenging or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those seeking material damages in connection with the HSR Act and applicable Gaming Laws), unless Merger or the effectiveness conversion of such agreement the Company Common into Parent Common Stock or action is conditioned upon the Closing. Notwithstanding anything cash pursuant to the contrary in this Agreement, Gamma shall have no obligation Merger or (ii) seeking to take restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent or Parent's subsidiaries to own or operate all or any action portion of the businesses or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma assets of the Company or its direct Subsidiaries, which in either case would have a Company Material Adverse Effect prior to or indirect owner from continuing to be treated as after the Effective Time, or a real estate investment trust under Parent Material Adverse Effect after the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Effective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Greenwich Air Services Inc)
Appropriate Action; Consents; Filings. (a) Upon Each of Microfluidics, IDEX and the terms and subject to the conditions set forth in this Agreement, each of the parties agrees Purchaser has agreed to use its commercially reasonable best efforts to take(i) take all appropriate action and do all things necessary, proper or advisable under applicable law or otherwise to complete the transactions contemplated by the Merger Agreement as promptly as practicable; (ii) obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Microfluidics or IDEX or any of their respective subsidiaries, or cause to be takenavoid any action or proceeding by any governmental entity in connection with the authorization, execution and delivery of the Merger Agreement and the completion of the transactions contemplated thereby; and (iii) as promptly as reasonably practicable, make all actions necessary filings and submissions, and pay any related fees, with respect to the Merger Agreement, the Offer and the Merger required under the Exchange Act and any other applicable securities laws and any other applicable law. Microfluidics and IDEX have agreed to cooperate with each other in connection with preparing and filing any filings or documents described above and with seeking any actions, consents, approvals or waivers of governmental entities or other third parties in connection with the transactions contemplated by the Merger Agreement. Each of Microfluidics and IDEX has agreed to give any notices to third parties and to use commercially reasonable efforts to obtain any third party consents that are necessary, proper or advisable under this to complete the transactions contemplated by the Merger Agreement, required to be disclosed by Microfluidics to the Real Estate Purchase Purchaser in a disclosure schedule to the Merger Agreement, or required to prevent a Company Material Adverse Effect from occurring prior to or after the completion of the Merger. If either party fails to obtain any 45 Table of Contents third party consent, that party will use its commercially reasonable efforts, and will take any actions reasonably requested by the other party, to minimize any adverse effect upon Microfluidics and IDEX, their respective subsidiaries and their respective businesses resulting, or which could reasonably be expected to result, after the completion of the Offer or the Merger, from the failure to obtain such consent. Neither IDEX nor the Purchaser is required to, and neither Microfluidics nor its subsidiary will without the written consent of IDEX, make any payment to or commit to pay any third party or agree to incur any liability or other obligation, in order to obtain any approval or consent with respect to the Offer or the Merger. The Purchaser, IDEX and Microfluidics will promptly notify the others of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any governmental entity with respect to the Offer or the Merger, keep each other informed as to the status of such request, inquiry, investigation, action or legal proceeding, and promptly inform the others of any communication with any governmental entity regarding the Offer or the Merger. The Merger Agreement provides that, in connection with the receipt of any necessary approvals or clearances of a governmental entity, neither IDEX nor Microfluidics (nor any of their subsidiaries) is required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their business in a specified manner or enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or similar agreement, or permit the sale, holding separate or other disposition of, any assets of IDEX, Microfluidics or their respective subsidiaries or affiliates. Public Announcements. Microfluidics, IDEX and the Purchaser have agreed that no press release or other announcement concerning the transactions contemplated by the Merger Agreement will be issued without the prior consent of Microfluidics and IDEX, except as required by applicable Law law or by the rules or regulations of any applicable U.S. securities exchange or regulatory or governmental entity to consummate and which the disclosing party is subject. In which event, with limited exceptions, the party seeking to make effective the Transactions as promptly as practicable, including using such disclosure will use reasonable best efforts to obtain provide the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement other party reasonable time to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order comment on such release or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)announcement.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to conditions herein provided, the conditions set forth in this AgreementCompany, each of the parties agrees to Acquiror and Acquiror Sub shall use its all reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action, and do or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law law or otherwise to consummate and make effective the Transactions transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, from any Governmental Entities any consents, approvals, licenses or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained by Acquiror or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiariesrespective Subsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (transactions contemplated by this Agreement, including, after the Closingwithout limitation, the Surviving Corporation Merger, and (iii) make all necessary notifications and filings and thereafter make any other required submissions with respect to this Agreement and the Merger required under [a] the Securities Act of 1933, the Securities Exchange Act of 1934 and any other applicable federal or state securities laws, [b] the BHC Act, [c] Wisconsin Law, [d] Illinois Law, and [e] any other applicable law; provided that Acquiror and the Company shall cooperate with each other in connection with the making of all such filings. The Company and Acquiror shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations promulgated under any applicable law (including all information required to be included in the notice of the meeting of the Company's shareholders called to approve this Agreement) in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, Acquiror agrees, subject to receipt of all necessary cooperation by the Company and its Subsidiaries) , to use its reasonable best efforts to make initial filings or provide all initial notices contemplated above no later than November 15, 1997. Acquiror shall have primary responsibility for preparation of all applications for regulatory approval of the Acquirors’ freedom transactions contemplated in this Agreement and Acquiror shall provide the Company with a copy of action each application or document filed by it with respect to, federal or its ability state regulatory officials to retainobtain such approvals. As provided above, the Company agrees to cooperate with Acquiror and use its reasonable best efforts to assist the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact Acquiror in any material respect on the Acquirors, their Affiliates preparing such applications and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement filings and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness pursuit of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)approvals.
Appears in 1 contract
Samples: Agreement and Plan of Merger (State Financial Services Corp)
Appropriate Action; Consents; Filings. (a) Upon the terms Each of RC2, Parent and subject to the conditions set forth in this Agreement, each of the parties agrees Purchaser has agreed to use its their respective reasonable best efforts to as promptly as reasonably practicable: (1) take, or cause to be taken, all actions that are appropriate actions, and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law law to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to transactions contemplated by the Merger Agreement (2) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsrequired permits, waivers, consents, approvals, orders and consents or authorizations from Governmental Entities (including, without limitation, those governmental authorities or other persons in connection with the consummation of the transactions contemplated by the Merger Agreement, including the Offer and the Merger, (3) defend any proceedings challenging the Merger Agreement or the consummation of the transactions including the Offer and the Merger and (4) make all necessary filings and other required 33 Table of Contents submissions required under the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement or foreign antitrust laws with respect to the contraryMerger Agreement and the Merger. Parent and RC2 agreed to cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable changes suggested in no event shall connection with such filing. RC2 and Parent agreed to furnish all information required for any application or other filing to be made pursuant to the Acquirorsrules and regulations of any applicable law in connection with the transactions contemplated by the Merger Agreement. RC2, Merger Sub Parent and Purchaser each agreed to use reasonable best efforts to: (1) make the applications or filings required to be made by Parent, MergerSub or RC2 or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires subsidiaries under the sale, divestiture, licensing or disposition of any material assets or businesses HSR Act in connection with the Merger Agreement and the consummation of the Acquirorstransactions contemplated by the Merger Agreement as promptly as is reasonably practicable (and in any event within 10 business days following the date of the Merger Agreement), and to concurrently with such filing or as soon as practicable thereafter, request early termination of the Surviving Corporationwaiting period under the HSR Act, (2) comply at the Company earliest practicable date with any request under the HSR Act or foreign antitrust laws for additional information received by Parent or RC2 or any of their Subsidiaries, (ii) materially limits subsidiaries from the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) Federal Trade Commission or the Acquirors’ freedom Department of action Justice or any other governmental authority in connection with such applications or filings or the Transactions and (3) reasonably coordinate and cooperate with each other party in the making of any applications or filings (including furnishing any information the other party may require in order to make any such application or filing), or obtaining any approvals, required in connection with the Transactions under the HSR Act or Foreign Antitrust Laws. RC2 agreed that Parent has the right to take the lead in any communications with any third person or governmental authority with respect to, to obtaining such approvals or its ability to retain, consents and RC2 cannot take any action in connection therewith without the Company prior written consent of Parent. RC2 and the Company’s Subsidiaries or any portion thereof or any Parent agreed that neither of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would them will be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror required to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in separate their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations assets in connection with obtaining all necessary actions HSR Act or non-actions, waivers, consents, foreign antitrust approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely immaterial to materially impair Gamma Parent, RC2 or its direct the economic or indirect owner from continuing business benefits to be treated as a real estate investment trust under Parent of the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to transactions contemplated by the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Merger Agreement.
Appears in 1 contract
Samples: Merger Agreement (Galaxy Dream Corp)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties agrees to Buyer Parties and each of the Company Parties shall use its reasonable best efforts to take, or consummate the transactions contemplated hereby and to cause the conditions set forth in Article VII to be takensatisfied. Without limiting the generality of the foregoing, all actions that are necessary, proper or advisable under this Agreement, each of the Real Estate Purchase Agreement Buyer Parties and applicable Law to consummate and make effective each of the Transactions as promptly as practicable, including using Company Parties shall use its reasonable best efforts to (i) promptly obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, consents, Permits (including Environmental Permits), waivers, consents, approvals, authorizations and orders and authorizations from Governmental Entities (including, without limitation, those necessary or advisable in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses consummation of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiariestransactions contemplated hereby, (ii) materially limits the conduct of the Acquirors or their Affiliates as promptly as practicable, make and not withdraw (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and without the Company’s Subsidiaries consent) all registrations and filings with any Governmental Entity necessary or any portion thereof or any advisable in connection with the consummation of the Acquirors’ transactions contemplated by this Agreement, including any filings required of them or their Affiliates’ other assets “ultimate parent entities” under any Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or businessesadvisable, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order defend all lawsuits or other arrangementlegal, that would require either Acquiror regulatory, administrative or other proceedings to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company which it or any of its Subsidiaries as affiliates is a party challenging or affecting this Agreement or the consummation of the date transactions contemplated by this Agreement, in each case until the issuance of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entitya final, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action non-appealable order with respect to its business each such lawsuit or operations other proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in connection with obtaining all necessary actions or each case until the issuance of a final, non-actionsappealable order with respect thereto, waivers, consents, approvals, orders and authorizations from (v) seek to resolve any objection or assertion by any Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of Entity challenging this Agreement or the transactions contemplated hereby and (vi) execute and deliver any additional instruments necessary to consummate the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)transactions contemplated hereby.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Strategic Hotels & Resorts, Inc)
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, each of the Company, on one hand, and Holdco and Merger Sub, on the other hand, shall (i) use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or non-actions by, and make as promptly as practicable all necessary notifications to and filings and submissions with, any Governmental Entity pursuant to Applicable Law or any third party as set forth in Section 8.5 of the Company Disclosure Letter; (ii) use reasonable best efforts to (A) avoid a suit, action, petition to deny, objection, proceeding or investigation, whether judicial or administrative and whether brought by a Governmental Entity or any third party, and (B) avoid the entry of, or to effect the dissolution, lifting or rescinding of, any injunction, stay, restraining order or other order in any such suit, action, petition to deny, objection, proceeding or investigation, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement; (iii) use reasonable best efforts to cooperate with each other in (A) determining which filings or responses to requests for additional information or documentary material from a Governmental Entity are required to be made prior to the Effective Time with, and which registrations, consents, approvals, Permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties agrees to in connection with the execution and delivery of this Agreement and related agreements and consummation of the transactions contemplated hereby and thereby and (B) timely making all such filings and responses and timely seeking all such consents, approvals, Permits, notices or authorizations; and (iv) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, the Real Estate Purchase Agreement and applicable Law cooperate with each other in order to do, all other things necessary or appropriate to consummate and make effective the Transactions transactions contemplated hereby as promptly soon as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sciclone Pharmaceuticals Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Offer, the Merger and the other Transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to accomplish the following: (i) obtain all consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including under any Contract to which the Real Estate Purchase Required Consents and Company or Parent or any of their respective Subsidiaries is party or by which such Person or any of their respective properties or assets may be bound (provided, that the Company shall not pay or agree to pay any material consent fees or other material payments requested by any such third parties without the written consent of Parent, not to be unreasonably withheld, conditioned or delayed), (ii) obtain all necessary actions or non-actionsnonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Competition Laws), make all necessary registrations, declarations and filings with and take all steps as may be necessary to obtain an approval or waiver from, or to avoid any Proceeding by, any Governmental Entity (including, without limitation, in connection with applicable Competition Laws), (iii) resist, contest or defend any Proceeding (including administrative or judicial Proceedings) challenging the Offer, the Merger or the completion of the Transactions, including seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the Transactions, and (iv) execute and deliver any additional instruments necessary to consummate the Transactions and fully to carry out the purposes of this Agreement. Notwithstanding anything Each of the parties shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in this Agreement connection with the foregoing. Subject to applicable Law relating to the contraryexchange of information, the Company and Parent shall have the right to review in no event advance, and to the extent practicable each shall consult with the Acquirorsother in connection with, Merger Sub all of the information relating to the Company or Parent, as the case may be, and any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangementSubsidiaries, that (i) requires appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the sale, divestiture, licensing or disposition of any material assets or businesses of the AcquirorsOffer, the Surviving CorporationMerger and the Transactions. In exercising the foregoing rights, the Company or any each of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability Parent shall act reasonably and as promptly as practicable. Subject to retain, the Company applicable Law and the Company’s Subsidiaries or any portion thereof or any instructions of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company and Parent shall notkeep each other reasonably apprised of the status of matters relating to the completion of the Transactions, without including promptly furnishing the Acquirors’ other with copies of notices or other written consent, which may be withheld substantive communications received by the Acquirors in their sole discretionCompany or Parent, takeas the case may be, or commit to takeany of their respective Subsidiaries, from any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any Governmental Entity and/or third party to take or agree to take any action with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its business counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any substantive filing, investigation or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those other inquiry in connection with the HSR Act transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each of the Company and Parent shall, and shall cause their respective affiliates to, make or cause to be made all filings required under any applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything Competition Laws with respect to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated Transactions as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)promptly as practicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Science 37 Holdings, Inc.)
Appropriate Action; Consents; Filings. (a) Upon the terms The Company, Parent and subject to the conditions set forth in this Agreement, each of the parties agrees to Merger Sub shall use its their reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this AgreementApplicable Law, the Real Estate Purchase Agreement and applicable Law including Antitrust Laws to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsfrom any Governmental Authorities any consents, licenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirorsbe obtained by Parent, Merger Sub or the Company, or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, or to avoid any Proceeding by any Governmental Authority (ii) materially limits including those in connection with Antitrust Laws), in connection with the conduct authorization, execution and delivery of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as consummation of the Transactions and (iii) (A) as promptly as reasonably practicable, and in any event within ten (10) Business Days after the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to hereof, make all necessary filings, and thereafter make any Governmental Entityother required submissions, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining this Agreement required under the HSR Act and (B) as promptly as reasonably practicable after the date hereof, make all necessary actions filings, and thereafter make any other required submissions, with respect to this Agreement required under any other Applicable Law. The Company and Parent shall furnish to each other all information required for any application or non-actions, waivers, consents, approvals, orders other filing under the rules and authorizations from Governmental Entities (including, without limitation, those regulations of any Applicable Law in connection with the Transactions. No party shall give consent to any voluntary extension of any statutory deadline or withdraw its notification and report form pursuant to the HSR Act and applicable Gaming Laws), or any other filing made pursuant to any other Antitrust Law unless the effectiveness of other party has given its prior written consent to such agreement extension or action is delay, which consent will not be unreasonably withheld, conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Codedelayed; provided, howeverthat, that Gamma Parent may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement withdraw and refile its Notification and Report Form initially filed pursuant to the extent that Gamma is excused from taking HSR Act with respect to the Transactions on one occasion, consistent with the procedure set forth in 16.C.F.R. 803.12, without obtaining the consent of the Company. Neither Parent nor the Company shall be entitled to make additional commitments to, or agreements with, Governmental Authorities to delay the Closing following the expiration or termination of the waiting period under the HSR Act or any commitment to, or agreement with, any Governmental Authority not to close the Transactions before a certain date unless the other party shall have agreed to such action commitment or refraining from taking agreement, such action by this sentence and; provided, further that Gamma will agreement not be deemed to be in breach of this Agreement solely due to its failure to take unreasonably withheld, conditioned, or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)delayed.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms The Company, Parent and subject to the conditions set forth in this Agreement, Parent Sub shall each of the parties agrees to use its reasonable best efforts to to: (i) take, or cause to be taken, all actions that are appropriate action, and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionslicenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (includingrequired to be obtained or made by Parent, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, in no event shall the Acquirors, Merger Parent Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (transactions contemplated herein, including, after the Closingwithout limitation, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or Merger; (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED required under (A) Delaware Law and Florida Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, taken as a whole. For if any, and any other applicable federal or state securities laws, and (B) the avoidance of doubtHSR Act, the parties agree and (C) any other applicable Law; provided that any actionParent, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, Parent Sub and the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent cooperate with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those each other in connection with the HSR Act and applicable Gaming Laws)making of all such filings, unless the effectiveness including providing copies of all such agreement or action is conditioned upon the Closing. Notwithstanding anything documents to the contrary non-filing party and its advisors prior to filing and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. The Company, Parent and Parent Sub shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 1 contract
Samples: Confidential Treatment Requested Agreement and Plan of Merger (Daou Systems Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each Each of the parties agrees hereto shall make promptly its respective filings, and thereafter make any other required submissions, under the HSR Act with respect to the Transactions. In addition, the parties shall notify this Agreement to the European Community Commission and request a negative clearance or an exemption under Article 81 of the Treaty of Rome. The parties hereto will use its reasonable their respective best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions as promptly as practicable, and to cause the conditions to the Transactions set forth in Article VII to be satisfied (including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionslicenses, waiverspermits, consents, approvals, authorizations, waivers, qualifications and orders and authorizations from of Governmental Entities (including, without limitation, those in connection with Authorities as are necessary for the HSR Act and applicable Gaming Lawsconsummation of the Transactions). Notwithstanding anything in this Agreement Fiat and General Motors each agree to use their best efforts to avoid or eliminate any impediment and obtain all consents or waivers under any antitrust or competition Law that may be asserted by any antitrust or competition Governmental Authority, so as to enable the contraryparties to close the Transactions. In addition, in no event shall the Acquirors, Merger Sub or any each of Fiat and General Motors agree to use their respective Affiliates be obligated best efforts to take any action, including entering into obtain any consent decree, hold separate order or other arrangement, to vacate or lift any Order relating to antitrust or competition Law matters that (i) requires would have the sale, divestiture, licensing or disposition effect of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or making any of the Acquirors’ Transactions illegal or otherwise prohibiting or materially delaying their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in consummation. In the event a Governmental Authority with applicable jurisdiction imposes any material respect limitations on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, this Agreement or the businesses to be acquired by Joint Venture Agreements or the Acquirors pursuant to this Agreement and the Real Estate Purchase Credit Cooperative Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror will implement those limitations to divest or hold separate, or agree the extent necessary to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent comply with the limitations set forth in requirements of such Governmental Authority, subject to the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action provisions of Section 8.02(c) hereof with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless sale of the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the CodeOffered Shares; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking any such action limitation shall have a material adverse effect on the synergy value of any particular Joint Venture or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed the Credit Cooperative proposed to be in breach established under this Agreement, either party may elect to cease implementation of such Joint Venture or the Credit Cooperative without otherwise affecting the overall validity of the Cooperative Arrangement, the terms and conditions of this Agreement solely due Agreement, the other continuing Joint Venture Agreements or, if continuing, the Credit Cooperative Agreement. In addition to its failure to take or refrain from taking such action. For the avoidance of doubtforegoing, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee event Fiat delivers a Put Notice pursuant to Section 8.3(b)8.03 hereof, General Motors shall commit to effect the sale or disposition of such of its assets or businesses as are required to be divested in order to avoid the entry of, or to effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the consummation of the Put Closing; provided that General Motors shall not be required to agree to divest assets or operations of General Motors or Fiat Auto which are required to be divested by a Governmental Authority as a condition to obtaining necessary approvals under applicable antitrust and competition laws, or to effect the dissolution of any such Order, if (A) such assets or operations constitute all or substantially all the assets or operations of (i) General Motors located in Europe, (ii) General Motors located in Latin America, or (iii) Fiat Auto (unless, in any such case, the divestiture requirement is reasonably regarded to arise out of, or be principally due to, one or more acquisitions consummated by General Motors after the Closing Date) or (B) the divestiture requirement is reasonably regarded to arise out of or be principally due to one or more acquisitions consummated by Fiat after the Closing Date.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject Parent shall use (and cause their respective Subsidiaries to the conditions set forth in this Agreement, each of the parties agrees to use its use) their commercially reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to those matters set forth on Section 5.5(a) of the Company Disclosure Schedule, (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsfrom any Governmental Entities any consents, licenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained by Parent or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their respective Subsidiaries, (ii) materially limits or to avoid any Action or Order by any Governmental Entity, in connection with the conduct authorization, execution and delivery of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreementconsummation of the transactions contemplated hereby, taken as a whole. For including without limitation the avoidance of doubtOffer, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as exercise of the date of this Agreement shall be considered “material” for Top-Up Option and the purposes of the preceding sentence. With regard to Merger and (iii) promptly make all necessary filings, and thereafter make any Governmental Entityother required submissions, the Company shall notand pay any fees due in connection therewith, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations this Agreement, the Offer, the Top-Up Option and the Merger required under (A) the Exchange Act, the Securities Act and any other applicable securities Laws, (B) the HSR Act and any other applicable competition Laws and (C) any other applicable Law, if any; provided, that the Company and Parent shall cooperate with each other in all respects in connection with obtaining all necessary actions (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Proxy Statement and any other filings made or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those required to be made with the SEC in connection with the Offer or the Merger and the transactions contemplated thereby, (y) making an appropriate filing pursuant to the HSR Act as set forth in Section 5.5(d) and determining whether any other action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer, the exercise of the Top-Up Option or the Merger and (z) seeking any such actions, consents, approvals or waivers or timely making any such filings. The Company and Parent shall furnish to each other all information required for any application or other filing under any applicable Gaming Laws)Law in connection with the transactions contemplated by this Agreement. The Company and Parent may, unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action other pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).this
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Offer, the Merger and the other Transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to accomplish the following: (i) obtain all consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including under any Contract to which the Real Estate Purchase Required Consents and Company or Parent or any of their respective Subsidiaries is party or by which such Person or any of their respective properties or assets may be bound (provided, that the Company shall not pay or agree to pay any material consent fees or other material payments requested by any such third parties without the written consent of Parent, not to be unreasonably withheld, conditioned or delayed), (ii) obtain all necessary actions or non-actionsnonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Competition Laws). Notwithstanding anything in this Agreement , make all necessary registrations, declarations and filings with and take all steps as may be necessary to the contrary, in no event shall the Acquirors, Merger Sub obtain an approval or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect towaiver from, or its ability to retain, the Company and the Company’s Subsidiaries or avoid any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separateProceeding by, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities Entity (including, without limitation, those in connection with applicable Competition Laws), (iii) resist, contest or defend any Proceeding (including administrative or judicial Proceedings) challenging the Offer, the Merger or the completion of the Transactions, including seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the Transactions, and (iv) execute and deliver any additional instruments necessary to consummate the Transactions and fully to carry out the purposes of this Agreement. Each of the parties shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the HSR Act and foregoing. Subject to applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything Law relating to the contrary in this Agreementexchange of information, Gamma the Company and Parent shall have no obligation the right to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; providedreview in advance, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement and to the extent practicable each shall consult with the other in connection with, all of the information relating to the Company or Parent, as the case may be, and any of their respective Subsidiaries, that Gamma is excused from taking such action appears in any filing made with, or refraining from taking such action by this sentence and; providedwritten materials submitted to, further that Gamma will not be deemed to be any third party and/or any Governmental Entity in breach of this Agreement solely due to its failure to take or refrain from taking such action. For connection with the avoidance of doubtOffer, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).Merger and the
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integra Lifesciences Holdings Corp)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Merger and the other Transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to accomplish the following: (i) obtain all consents, approvals or waivers from, or participation in other discussions or negotiations with, Third Parties, including under any Contract to which the Real Estate Purchase Required Consents and Company or Parent or any of their respective Subsidiaries is party or by which such Person or any of their respective properties or assets may be bound (provided, that the Company shall not pay or agree to pay any material consent fees or other material payments requested by any such Third Parties without the written consent of Parent, not to be unreasonably withheld, conditioned or delayed), (ii) obtain all necessary actions or non-actionsnonactions, waivers, consents, approvals, orders Orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Competition Laws). Notwithstanding anything in this Agreement , make all necessary registrations, declarations and filings with and take all steps as may be necessary to the contrary, in no event shall the Acquirors, Merger Sub obtain an approval or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect towaiver from, or its ability to retain, the Company and the Company’s Subsidiaries or avoid any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separateProceeding by, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities Entity (including, without limitation, those in connection with applicable Competition Laws), (iii) resist, contest or defend any Proceeding (including administrative or judicial Proceedings) challenging the Merger or the completion of the Transactions, including seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the Transactions, and (iv) execute and deliver any additional instruments necessary to consummate the Transactions and fully to carry out the purposes of this Agreement. Each of the parties shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the HSR Act and foregoing. Subject to applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything Law relating to the contrary in this Agreementexchange of information, Gamma the Company and Parent shall have no obligation the right to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; providedreview in advance, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement and to the extent practicable each shall consult with the other in connection with, all of the information relating to the Company or Parent, as the case may be, and any of their respective Subsidiaries, that Gamma is excused appears in any filing made with, or written materials 45 submitted to, any Third Party and/or any Governmental Entity in connection with the Merger and the Transactions. In exercising the foregoing rights, each of the Company and Parent shall act reasonably and as promptly as practicable. Subject to applicable Law, the Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the Transactions, including promptly furnishing the other with copies of notices or other written substantive communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from taking any Governmental Entity and/or Third Party with respect to such action transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the opportunity to participate in any meeting or refraining from taking such action by telephone call with any Governmental Entity in respect of any substantive filing, investigation or other inquiry in connection with the transactions contemplated hereby. The parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this sentence and; provided, further that Gamma Section 5.5 as "outside counsel only." Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be deemed disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. Subject to applicable 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. In furtherance and not in limitation of the foregoing, each of the Company and Parent shall, and shall cause their respective affiliates to, make or cause to be in breach made all filings required under applicable Competition Laws with respect to the Transactions as promptly as practicable and advisable, as agreed by the parties, after the date of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fibrocell Science, Inc.)
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject Parent shall use (and cause their respective Subsidiaries to the conditions set forth in this Agreement, each of the parties agrees to use its use) their commercially reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to those matters set forth on Section 5.5(a) of the Company Disclosure Schedule, (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsfrom any Governmental Entities any consents, licenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained by Parent or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their respective Subsidiaries, (ii) materially limits or to avoid any Action or Order by any Governmental Entity, in connection with the conduct authorization, execution and delivery of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreementconsummation of the transactions contemplated hereby, taken as a whole. For including without limitation the avoidance of doubtOffer, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as exercise of the date of this Agreement shall be considered “material” for Top-Up Option and the purposes of the preceding sentence. With regard to Merger and (iii) promptly make all necessary filings, and thereafter make any Governmental Entityother required submissions, the Company shall notand pay any fees due in connection therewith, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations this Agreement, the Offer, the Top-Up Option and the Merger required under (A) the Exchange Act, the Securities Act and any other applicable securities Laws, (B) the HSR Act and any other applicable competition Laws and (C) any other applicable Law, if any; provided, that the Company and Parent shall cooperate with each other in all respects in connection with obtaining all necessary actions (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Proxy Statement and any other filings made or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those required to be made with the SEC in connection with the Offer or the Merger and the transactions contemplated thereby, (y) making an appropriate filing pursuant to the HSR Act as set forth in Section 5.5(d) and determining whether any other action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer, the exercise of the Top-Up Option or the Merger and (z) seeking any such actions, consents, approvals or waivers or timely making any such filings. The Company and Parent shall furnish to each other all information required for any application or other filing under any applicable Gaming Laws)Law in connection with the transactions contemplated by this Agreement. The Company and Parent may, unless as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the effectiveness of such agreement or action is conditioned upon the Closing. other pursuant to this Section 5.5 as “Outside Counsel Only Material.” Notwithstanding anything to the contrary in this AgreementSection 5.5, Gamma shall have no obligation materials provided to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma the other party or its direct or indirect owner from continuing counsel may be redacted to be treated as a real estate investment trust under remove references concerning the Code; provided, however, that Gamma may not be compelled to take valuation of the Company and any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Company Subsidiaries.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms The Company and subject to the conditions set forth in this Agreement, each of the parties agrees to Parent shall use its their reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions Merger as promptly as practicable, including using reasonable best efforts to (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsexpeditiously from any Governmental Authorities any consents, licenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order made by Parent or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their SubsidiariesSubsidiaries in connection with the authorization, (ii) materially limits execution and delivery of this Agreement and the conduct consummation of the Acquirors or their Affiliates (includingMerger, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in as promptly as practicable, make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act, taken as a whole. For and any other applicable federal or state securities Laws, (B) the avoidance HSR Act and any related governmental request thereunder and (C) any other applicable Law; provided that Parent and the -------- Company shall cooperate with each other in connection with the making of doubt, the parties agree that any actionall such filings, including entering into any consent decreeproviding copies of all such documents to the non-filing party and its advisors prior to filing and, hold separate order if requested, accepting all reasonable additions, deletions or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or changes suggested by the Company or any of its Subsidiaries as of other party in connection therewith. From the date of this Agreement until the Effective Time, each party shall be considered “material” for promptly notify the purposes other party in writing of any pending or, to the knowledge of the preceding sentence. With regard to first party, threatened action, proceeding or investigation by any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, Authority or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take other person (i) challenging or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those seeking material damages in connection with the HSR Act and applicable Gaming Laws), unless Merger or the effectiveness conversion of such agreement the Company Common into Parent Common Stock or action is conditioned upon the Closing. Notwithstanding anything cash pursuant to the contrary in this Agreement, Gamma shall have no obligation Merger or (ii) seeking to take restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent or Parent's subsidiaries to own or operate all or any action portion of the businesses or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma assets of the Company or its direct Subsidiaries, which in either case would have a Company Material Adverse Effect prior to or indirect owner from continuing to be treated as after the Effective Time, or a real estate investment trust under Parent Material Adverse Effect after the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Effective Time.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Parent and the terms and subject to the conditions set forth in this Agreement, Company shall each of the parties agrees to use its their reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action, and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law or otherwise to consummate and make effective the Transactions transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts (ii) obtain any third party consents necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, (iii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionsfrom any Governmental Entities any consents, licenses, permits, waivers, consents, approvals, authorizations or orders required (A) to be obtained or made by Parent, the Company or any of their respective Subsidiaries, and authorizations from (B) to avoid any action or proceeding by any Governmental Entities Entity (including, without limitation, those in connection with the HSR Act and antitrust and competition Laws of any other applicable Gaming Lawsjurisdiction). Notwithstanding anything , in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated herein, including the Merger, and (iv) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Securities Act and the Exchange Act, and any other applicable federal or state securities Laws, (B) the HSR Act and antitrust and competition Laws of any other applicable jurisdiction and (C) any other applicable Law. Parent and the Company shall cooperate with each other in connection with the making of all filings or submissions referenced in the preceding sentence (including providing copies of all such documents to the contrarynon-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in no event shall the Acquirors, Merger Sub or connection therewith) and in connection with resolving any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order investigation or other arrangement, that (i) requires the sale, divestiture, licensing or disposition inquiry of any material assets Governmental Entity with respect to any such filing or businesses of the Acquirors, the Surviving Corporation, submission. Parent and the Company or any of their shall have the right to review in advance, and each shall consult the other on, all the information relating to Parent and its Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) , as the case may be, that appears in any filing made with, or the Acquirors’ freedom of action with respect written materials submitted to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to Third Party and/or any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those Entity in connection with the HSR Act Merger and applicable Gaming Laws), unless the effectiveness other transactions contemplated by this Agreement. Each of such agreement or action is conditioned upon Parent and the Closing. Notwithstanding anything Company shall promptly notify and provide a copy to the contrary in other party of any written communication received from any Governmental Entity with respect to any filing or submission or with respect to the Merger and the other transactions contemplated by this Agreement. Each of Parent and the Company shall give the other reasonable prior notice of any communication with, Gamma and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filing or any such transaction. In the event that either party shall have no obligation fail to take obtain any action or refrain from taking any action pursuant to non-governmental Third Party consent described in clause (ii) of this Section 6.5(a) if it obtains a legal opinion ), such party shall use all reasonable efforts, and shall take any such actions reasonably requested by the other party hereto, to minimize any adverse effect upon the Company and Parent, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from a nationally recognized law firm that the failure to obtain such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Codeconsent; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit require the expenditure of money by Parent, Merger Sub or the Company in exchange for any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)such non-governmental Third Party consent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Amc Entertainment Inc)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to hereto shall (and shall cause each of their applicable Affiliates and Subsidiaries to) use its reasonable best efforts to take, or cause to be taken, all actions that are 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 under this Agreementto consummate, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions as promptly as practicable, including using the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, each of the parties agrees to use its respective reasonable best efforts to (i) cause the conditions to the Merger set forth in ARTICLE VII to be satisfied as promptly as practicable, (ii) obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, any consents, approvals, orders orders, waivers and authorizations from of, actions or nonactions by, any Governmental Entities (including, without limitation, those Authority or any third party necessary in connection with consummation of the HSR Act transactions contemplated by this Agreement, including the Merger and applicable Gaming Laws)(iii) execute and deliver any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Notwithstanding anything to the contrary contained herein, nothing in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub require Parent or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their its Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by permit the Company or any of its Subsidiaries (without the prior consent of Parent), to (x) litigate with any Government Authority to obtain approval, authorization or consent to the Merger, (y) agree to (A) any license, sale or other disposition or holding separate (through establishment of a trust or otherwise) of any shares of the Company, Parent, the Surviving Company or any of their respective Subsidiaries or Affiliates or of any amount (other than a de minimis amount) of such entities’ businesses, assets or properties, (B) the imposition of any limitation (other than a de minimis limitation) on the ability of the Company, Parent, the Surviving Company, or any of their respective Subsidiaries or Affiliates to conduct their respective businesses or own any shares or assets or to acquire, hold or exercise full rights of ownership of their respective businesses and, in the case of Parent, the businesses of the Surviving Company and its Subsidiaries, or (C) the imposition of any impediment (other than a de minimis impediment) on Parent, the Surviving Company or any of their respective Subsidiaries or Affiliates under any Laws or (z) pay any amounts (other than de minimis amounts) or otherwise agree to provide any benefit or undertaking to be subject to any limitation or restriction to any Governmental Authority other than in respect of customary and established filing fees and other payments required as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld hereof by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Law.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, the Parties will reasonably cooperate with each of the parties agrees other and use (and will cause their respective Subsidiaries to use its use) their respective reasonable best efforts to take, or consummate the transactions contemplated by this Agreement prior to the Outside Date and to cause the conditions to the Mergers set forth in ARTICLE VI to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions satisfied as promptly as practicablereasonably practicable prior to the Outside Date, including using reasonable best efforts to obtain accomplish the Real Estate Purchase Required Consents and following as promptly as reasonably practicable prior to the Outside Date: (i) the obtaining of all necessary actions or non-actions, waivers, consents, approvals, orders registrations, waivers, permits, authorizations, orders, expirations or terminations of waiting periods and authorizations other confirmations from any Governmental Entities (includingAuthority or other Person that are or may become necessary, without limitation, those proper or advisable in connection with the consummation of the Transactions contemplated by this Agreement, including the Mergers (the “Regulatory Approvals”); (ii) the preparation and making of all registrations, filings, forms, notices, petitions, statements, submissions of information, applications and other documents (including filings with Governmental Authorities) that are or may become necessary, proper or advisable in connection with the consummation of the Transactions, including the Mergers; (iii) the taking of all steps as may be necessary, proper or advisable to obtain an approval from, or to avoid an Action by, any Governmental Authority or other Person in connection with the consummation of the Transactions, including the Mergers; and (iv) the defending of any Actions, whether judicial or administrative, challenging this Agreement or that would otherwise prevent or delay the consummation of the Transactions, including the Mergers, performed or consummated by each party in accordance with the terms of this Agreement, including seeking to have any stay, temporary restraining order or injunction entered by any Governmental Authority vacated or reversed. The Company shall use commercially reasonable efforts to obtain the consent, approval or waiver with respect to Material Contracts in connection with the consummation of the Transactions from third Persons to the extent reasonably requested by Parent after consulting with the Company in good faith regarding the request. Each of the Parties shall, in consultation and cooperation with the other Parties and as promptly as reasonably practicable, but in any event within ten (10) Business Days after the Agreement Date, make its respective filings under the HSR Act Act, and make any other applications and filings as reasonably determined by the Company and Parent under other applicable Gaming LawsAntitrust Laws with respect to the Transactions, as promptly as practicable, but in no event later than as required by Law. Parent shall pay all filing fees and other charges for the filings required under any Antitrust Law by the Company or Parent with respect to the Transactions (the “Regulatory Filing Fees”). Notwithstanding anything to the contrary contained in this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For without the avoidance prior written consent of doubtParent (which consent shall not be unreasonably withheld, the parties agree that any actionconditioned or delayed), including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by none of the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard or Affiliates will grant or offer to grant any accommodation or concession (financial or otherwise), or make any payment, to any Person (other than filing fees to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations Authority) in connection with seeking or obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with its consent to any of the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Plan of Reorganization (Invitae Corp)
Appropriate Action; Consents; Filings. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or and to cause to be takenits Affiliates and Subsidiaries to take, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law Law, including Competition Law, to consummate and make effective the Merger and the other Transactions as promptly as practicable, including using reasonable best efforts to: (i) obtain all consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including under any Contract to which the Company or Parent or any Parent Subsidiary is party or by which such Person or any of their respective properties or assets may be bound, (ii) obtain the Real Estate Purchase Required Consents and all necessary or advisable actions or non-actionsnonactions, waivers, consents, clearances, waiting period expirations or terminations, approvals, licenses, permits, orders and authorizations from Governmental Entities (including, without limitation, including those in connection with applicable Competition Laws) (such items “Governmental Permits”), make all necessary or advisable registrations, declarations and filings with and take all steps as may be necessary to obtain any necessary or advisable Governmental Permits from, or to avoid any Proceeding by, any Governmental Entity, (iii) vigorously resist, contest and defend against (including through all available appeals) any Proceeding challenging the HSR Act Merger or the completion of the Transactions, including seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order that is in effect and that could delay, restrict, prevent or prohibit consummation of the Transactions, and (iv) execute and deliver any additional instruments necessary to consummate the Transactions and fully to carry out the purposes of this Agreement. Each of the parties shall promptly furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing. Subject to applicable Gaming Laws). Notwithstanding anything in this Agreement Law relating to the contrary, in no event shall the Acquirors, Merger Sub or any exchange of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retaininformation, the Company and Parent shall have the Company’s Subsidiaries or any portion thereof or any right to review in advance, and to the extent practicable each party shall consult with the other party in connection with, all of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected information relating to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or Parent or any of its Subsidiaries Parent Subsidiary, as the case may be, that appears in any filing made with, or written materials submitted to, any Third Party and/or any Governmental Entity in connection with the Merger and the Transactions. In exercising the foregoing rights, each of the date Company and Parent shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company and Parent shall notkeep each other reasonably apprised of the status of matters relating to the completion of the Transactions, without including promptly furnishing the Acquirors’ other with copies of notices or other written consent, which may be withheld substantive communications received by the Acquirors in their sole discretionCompany or Parent or any Parent Subsidiary, takeas the case may be, or commit to take, from any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action Governmental Entity and/or Third Party with respect to such transactions. Company and Parent will, and will cause each of their Affiliates to, consult and cooperate with the other party and will consider in good faith the views of the other party in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions, and to the extent practicable under the circumstances, shall provide the other party and its business counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any substantive filing, investigation or operations other inquiry in connection with the Transactions and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with obtaining Governmental Permits or any Proceeding. In furtherance and not in limitation of the foregoing, each of the Company and Parent shall, and shall cause their respective Affiliates to, (A) make or cause to be made all necessary actions filings required under applicable Competition Laws with respect to the Transactions as promptly as practicable and, in any event, file all required or non-actionsadvisable HSR Act filings or notifications within ten Business Days after the date of this Agreement, waiversprovided, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those that there are no changes in connection with the applicable regulations under the HSR Act between the date hereof and applicable Gaming Laws)the date of filing pursuant to the HSR Act, unless in which instance Company and Parent shall (A) use reasonable best efforts to file notifications under the effectiveness HSR Act as promptly as practicable after the announcement of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take changes and (B) make any action or refrain from taking any action pursuant other submissions with respect to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action Agreement required or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust advisable under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such actionHSR Act. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).45
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, including Section 7.03, each of the parties agrees to Company, Parent and Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law to to: (i) consummate and make effective the Transactions transactions contemplated by this Agreement as promptly as practicable; (ii) obtain from any Governmental Authority any consents, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionslicenses, permits, waivers, consents, approvals, authorizations, clearances or orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement required to the contrary, in no event shall the Acquirors, Merger Sub be obtained by Parent or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their respective Subsidiaries, (ii) materially limits or to avoid any Proceeding by any Governmental Authority, in connection with the conduct authorization, execution and delivery of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase consummation of the transactions contemplated herein, including the Offer and the Merger; (iii) defend any lawsuits or other Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions in accordance with the terms of this Agreement, taken including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated, lifted, overturned or reversed; and (iv) as a whole. For promptly as reasonably practicable, and in any event within ten Business Days after the avoidance of doubtdate hereof, make all necessary registrations, declarations, submissions and filings, and thereafter make any other required registrations, declarations, submissions and filings, and pay any fees due in connection therewith, with respect to the Transactions required under the Exchange Act, any other applicable federal or state securities laws, the parties agree that HSR Act, any actionapplicable Antitrust Laws, including entering into and any consent decree, hold separate order or other arrangementApplicable Law; provided, that would require either Acquiror to divest the parties shall cooperate with each other in connection with determining whether any action by or hold separatein respect of, or agree to divest or hold separatefiling with, any casino owned by Governmental Authority is required, in connection with the consummation of the Transactions, except where such Acquiror action or filing has been agreed to by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing parties in this Agreement shall require or the Company Disclosure Schedule and seeking any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-such actions, waivers, consents, approvals, orders authorizations, clearances or waivers or making any such filings. The parties shall furnish to each other all information with respect to them, their respective Subsidiaries and authorizations from Governmental Entities (including, without limitation, those the Transactions required for any application or other filing under the rules and regulations of any Applicable Law in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Priceline Group Inc.)
Appropriate Action; Consents; Filings. (a) Upon Each Party shall, as soon as reasonably practicable, use commercially reasonable efforts and cooperate with the terms and subject other Party to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to takeobtain, or cause to be takenobtained, all actions that are necessary, proper or advisable under this Agreementprior to the Closing (with respect to the Purchased Assets), the Real Estate Purchase applicable Tower Return Date (with respect to any Returned Tower Assets) or the Tower Swap Date (with respect to any Swapped-in Tower Assets and Swapped-out Tower Assets), as applicable, (i) all Required Governmental Approvals of such Party, (ii) each consent, substitution or approval of any third party required to assign (including to sever, partially assign and novate as contemplated by Section 5.4(d) below) any User Master Lease Agreement and applicable Law to consummate and make effective the Transactions as promptly as practicable, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those User Site Lease Agreement in connection with the HSR Act Transactions (each such item in this clause (ii), a “User Consent”), and applicable Gaming Laws(iii) any other consent, substitution or approval (other than Landlord Consents) of any other third party required to assign or transfer (x) to Buyer any other Purchased Asset, any other Swapped-in Tower Asset or any Non-Transferable Item relating thereto or (y) to Seller any other Returned Tower Asset or any other Swapped-out Tower Asset or, in any such case, to otherwise to consummate the Transactions (each such item in this clause (iii), but excluding for the avoidance of doubt, any User Consent or any Landlord Consent, an “Other Required Consent”). Notwithstanding anything All such Required Governmental Approvals and other consents, substitutions and approvals that have been obtained by either Party shall be in this Agreement writing and executed counterparts thereof shall be delivered to the contrary, in no event shall other Party at or prior to the Acquirors, Merger Sub or any of their respective Affiliates be obligated Closing (with respect to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the AcquirorsPurchased Assets), the Surviving Corporation, the Company or applicable Tower Return Date (with respect to any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its SubsidiariesReturned Tower Assets) or the Acquirors’ freedom of action Tower Swap Date (with respect toto any Swapped-in Tower Assets and Swapped-out Tower Assets), or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a wholeapplicable. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under notwithstanding any other provision of this Agreement to the contrary, Buyer Parent and Buyer each acknowledge that Seller has no obligation to (and makes no representation or warranty that it will) obtain or seek to obtain any Landlord Consents prior to or after the Closing (except for Seller’s obligation to cooperate with Buyer Parent and Buyer after the Closing to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be set forth in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b5.4(b)).
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms and subject Subject to the conditions set forth in this AgreementSection 5.03, each of HH Finance, Parent, Sub and the parties agrees to Company shall use its reasonable best efforts to take, or consummate the transactions contemplated by this Agreement and to cause the conditions set forth in Article VI to be takensatisfied. Without limiting the generality of the foregoing, Parent, Sub and the Company shall (and Parent, HH Finance and Sub shall cause their Subsidiaries to) use their respective reasonable best efforts to (i) promptly obtain all actions that are necessaryor nonactions, proper consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable under in connection with the consummation of the transactions contemplated by this Agreement, the Real Estate Purchase Agreement and applicable Law to consummate and make effective the Transactions (ii) as promptly as practicable, including using reasonable best efforts and in any event within ten (10) Business Days after the date of this Agreement, make (and cause their relevant affiliates required to obtain make in accordance with the Real Estate Purchase Required Consents HSR Act) and not withdraw (without the Company’s consent) all necessary actions or non-actions, waivers, consents, approvals, orders registrations and authorizations from Governmental Entities (including, without limitation, those filings with the FTC and Antitrust Division in connection with the HSR Act and applicable Gaming Laws). Notwithstanding anything in consummation of the transactions contemplated by this Agreement to the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any actionAgreement, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses filings required of the Acquirors, parties or their “ultimate parent entities” under the Surviving Corporation, the Company or any of their SubsidiariesHSR Act, (iiiii) materially limits the conduct of the Acquirors or their Affiliates (includingas promptly as practicable, and in any event within 20 Business Days after the Closingdate of this Agreement, the Surviving Corporation make (and the Company cause their relevant affiliates required to make in accordance with applicable Antitrust Law) and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and not withdraw (without the Company’s Subsidiaries consent) all registrations and filings (including in draft form where applicable) with any foreign Governmental Entities under any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businessesadvisable, or (iiiiv) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order defend all lawsuits or other arrangementlegal, that would require either Acquiror regulatory, administrative or other Proceedings to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company which it or any of its Subsidiaries as affiliates is a party challenging or affecting this Agreement or the consummation of the date transactions contemplated by this Agreement, in each case until the issuance of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entitya final, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action non-appealable order with respect to its business each such lawsuit or operations in connection with obtaining all necessary actions other Proceeding, (v) seek to have lifted or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with rescinded any injunction or restraining order which may adversely affect the HSR Act and applicable Gaming Laws), unless ability of the effectiveness of such agreement or action is conditioned upon parties to consummate the Closing. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, Gamma shall have no obligation in each case until the issuance of a final, non-appealable order with respect thereto, (vi) seek to take resolve any action objection or refrain from taking assertion by any action pursuant Governmental Entity challenging this Agreement or the transactions, and (vii) execute and deliver any additional instruments necessary or advisable to consummate the transactions contemplated by this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the CodeAgreement; provided, howeverthat in the event that the FTC, that Gamma may not be compelled to take Antitrust Division or any action or refrain from taking any action foreign Governmental Entities under any other provision of this Agreement to Antitrust Law is closed or not accepting filings as required under subclauses (ii) and (iii) hereto, (a “Governmental Closure”), then the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; providedperiods provided under subclauses (ii) and (iii), further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubtas applicable, nothing in this Section 6.5(a) shall be deemed to limit any obligation extended day-for-day, for each Business Day the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Governmental Closure is in effect.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon the terms BSB and subject to the conditions set forth in this Agreement, each of the parties agrees to NBT shall use its all reasonable best efforts to (i) take, or cause to be taken, all actions that are appropriate action, and do, or cause to be done, all things necessary, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Law law to consummate and make effective the Transactions as promptly as practicabletransactions contemplated by this Agreement; (ii) obtain all consents, including using reasonable best efforts to obtain the Real Estate Purchase Required Consents and all necessary actions or non-actionslicenses, permits, waivers, consents, approvals, authorizations or orders and authorizations from Governmental Entities required under Law (including, without limitation, those all foreign and domestic (federal, state and local) governmental and regulatory rulings and approvals and parties to contracts) in connection with the HSR Act authorization, execution and applicable Gaming Laws). Notwithstanding anything in delivery of this Agreement to and the contrary, in no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses consummation by them of the Acquirorstransactions contemplated hereby and thereby, including, without limitation, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation Merger; and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in make all necessary filings, and thereafter make any material other required submissions, with respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase AgreementMerger required under (A) the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, taken as a whole. For the avoidance of doubt, the parties agree that and any action, including entering into other applicable federal or state securities laws; (B) any consent decree, hold separate order applicable federal or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities state banking laws (including, without limitation, those filing a notice with the FRB with respect to approval of the Merger under the BHCA and the applicable regulations promulgated thereunder or a request for waiver of the jurisdiction of the FRB under the BHCA); and (C) any other applicable law (including, without limitation, any applicable state insurance laws). BSB and NBT shall cooperate with each other in connection with the HSR Act making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing. BSB and NBT shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Gaming Laws), unless law (including all information required to be included in the effectiveness of such agreement or Joint Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement. In case at any time after the Effective Time any further action is conditioned upon necessary or desirable to carry out the Closing. Notwithstanding anything to the contrary in purposes of this Agreement, Gamma the proper officers and directors of each party to this Agreement shall have no obligation use all reasonable efforts to take any action or refrain from taking any action pursuant to all such necessary action. Anything in this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would Agreement notwithstanding, neither BSB nor NBT shall be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision required by virtue of this Agreement to comply with or agree to any regulatory order, condition, demand, or request that seeks the extent that Gamma is excused from taking such action divestiture of deposits, branches, or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed loans whose divestiture would constitute a Material Adverse Effect with respect to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Surviving Corporation.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Upon Subject to the terms and conditions herein provided, the Company, Parent and Merger Sub shall (i) use reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and make, as promptly as reasonably practicable, all necessary filings and submissions with, any Governmental Entity or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement; provided that in no event shall the Company or any of the Company Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to obtain any consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement under any contract other than de minimis amounts or amounts that are advanced or reimbursed substantially simultaneously by Parent, (ii) use reasonable best efforts to (A) avoid a suit, action, petition to deny, objection, proceeding or investigation, whether judicial or administrative and whether brought by a Governmental Entity or any third party, and (B) subject to Section 8.5(b), avoid the entry of, or to effect the dissolution of, any injunction, stay, temporary restraining order or other order in any such suit, action, petition to deny, objection, proceeding or investigation, in each case, challenging this Agreement or the transactions contemplated hereby or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, (iii) use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, Permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties in connection with the execution and delivery of this Agreement and related agreements and 52 consummation of the transactions contemplated hereby and thereby and (B) making all such filings and timely seeking all such consents, approvals, Permits, notices or authorizations, (iv) use reasonable best efforts to cause the conditions to the Merger set forth in this Agreement, each of the parties agrees Article IX to be satisfied as promptly as reasonably practicable and (v) use its reasonable best efforts to take, or cause to be taken, all other actions that are necessaryand do, proper or advisable under this Agreementcause to be done, the Real Estate Purchase Agreement and applicable Law cooperate with each other in order to do, all other things necessary or appropriate to consummate and make effective the Transactions transactions contemplated hereby as promptly soon as practicable; provided that for purposes of this Section 8.5(a), including using “reasonable best efforts to obtain efforts” shall include taking the Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those set forth in Section 8.5(a) of the Parent Disclosure Letter. In connection with the HSR Act foregoing, the Company, on the one hand, will provide Parent (or Parent’s outside counsel, where appropriate), and applicable Gaming LawsParent, on the other hand, will provide the Company (or Company’s outside counsel, where appropriate). Notwithstanding anything in this Agreement to , with copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the contrary, in no event shall the Acquirors, Merger Sub substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective Affiliates be obligated to take any actionstaffs, including entering into any consent decreeon the other hand, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the Real Estate Purchase Agreementtransactions contemplated hereby. Prior to submitting or making any such correspondence, taken as a whole. For the avoidance filing or communication to any such Governmental Entity or members of doubttheir respective staffs, the parties agree shall first provide the other party with a copy of such correspondence, filing or communication in draft form and give such other party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Entities, and shall consider and take into account all reasonable comments timely made by the other party with respect thereto. To the extent permitted by Applicable Law, each of the parties shall ensure that the other party is given the opportunity to attend any action, including entering into any consent decree, hold separate order meetings with or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the date of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to appearances before any Governmental Entity, the Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action Entity with respect to its business the transactions contemplated by this Agreement. Parent shall have principal responsibility for devising, directing, and implementing the strategy for obtaining any necessary approval, for responding to any request, inquiry, or operations in connection with obtaining investigation (including directing the timing, nature, and substance of all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with the HSR Act and applicable Gaming Lawssuch responses), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything and for leading all meetings and communications with any Governmental Entity that has authority to the contrary in this Agreement, Gamma shall have no obligation to take enforce any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b)Antitrust Law.
Appears in 1 contract
