Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates 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 or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions. (b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law. (c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliates.
Appears in 1 contract
Samples: Merger Agreement (MULTI COLOR Corp)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI and Annex II to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, each of Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and Parent shall cause each of the Company Subsidiaries its affiliates to) use its reasonable best efforts to (i) promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable practicable, and in any event within five (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (75) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement)hereof, make and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or advisable in connection with the consummation of the Transactions, including the filings required of the parties them or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingproceeding, (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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) In furtherance of the obligations set forth in Section 5.06(a), Parent shall promptly take (and shall cause each of its affiliates to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment and obtain all approvals and consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable, including accepting operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company, the Surviving Corporation or any of their respective affiliates (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided, however, that Parent shall not be required to take any such action to the extent that such action would reasonably be expected to have a Company Material Adverse Effect or a material adverse effect on Parent. Neither Parent nor the Company Sub, directly or indirectly, through one or more of their respective affiliates, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or Annex II or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: , subject to requirements of any Governmental Entity and any applicable Law, and subject to all applicable privileges, including the attorney-client privilege (provided, that if Parent does not disclose information in reliance on the foregoing, it shall provide notice to the Company that it is withholding such information and shall use its commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not give rise to the basis for such nondisclosure): (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) As soon as practicable following the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation date of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of ParentAgreement, the Company or shall give the notices set forth in Section 5.06(d)(i) of the Company Disclosure Letter and, to the extent required thereby, both the Company and Parent shall take the actions described in Section 5.06(d)(ii) of the Company Disclosure Letter. For the avoidance of doubt, (i) the Company shall have no obligation to take any other action with respect to any of their respective Subsidiaries or the Contracts referred to in such Sections of the Company Disclosure Letter, (Bii) as necessary to address privilege concerns and (2) Parent and Sub the Company shall not be required deemed to share with have breached any representation, warranty or covenant contained in this Agreement in the event that any addressee of any of the notices set forth in Section 5.06(d)(i) of the Company Disclosure Letter responds to any information that such notice in any manner and (Aiii) does not relate no such response, or failure to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect respond to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatessuch notices, shall be deemed to have any effect on any of the Offer Conditions.
Appears in 1 contract
Samples: Merger Agreement (Cellular Dynamics International, Inc.)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and the Company shall cause the Company Subsidiaries and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI and Annex II to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable ’s affiliates 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 or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter in any event within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make and not withdraw (without the Company’s consent) , not to be unreasonably withheld, conditioned or delayed), all registrations and filings with any Governmental Entity or other persons necessary or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary In addition, except as may be prohibited by any Governmental Entity or by any Law, in this Section 5.06connection with any such request, (1) no inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding; provided, however, that Parent shall be in violation of this Agreement by virtue of providing information that is competitively sensitive have final approval over matters pertaining to one another on an “outside counsel only” any such request, inquiry, investigation, or other basis designed legal Proceeding relating to ensure compliance with applicable Law (including the HSR Act competition or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesantitrust Laws.
Appears in 1 contract
Samples: Merger Agreement (Landauer Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03the terms and conditions of this Agreement and applicable Law, each of Parent and the Company shall (and Parent shall cause each of its affiliates to and the Company shall cause each of the Company Subsidiaries to) use its reasonable best efforts to take all actions necessary or advisable to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable ’s affiliates 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 or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letterand, with respect to the filings filing required of the parties or their “ultimate parent entities” to be made under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter HSR Act, within seven fifteen (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (1015) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required to be made outside of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter United States, within twenty twenty-five (2025) Business Days after the date of this AgreementAgreement (which, for the avoidance of doubt, shall only require that the initial filings be made during such twenty-five (25) Business Day period), ) make and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to to, or settlement of, each such lawsuit or other Proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of prevents the parties to consummate from consummating the Transactions, in each case until the issuance of a final, non-appealable order with respect theretothereto or the settlement thereof, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on Transactions; provided, however, that notwithstanding the terms contemplated by this Agreement. In foregoing or the immediately preceding sentence, in no event shall Parent or any of its affiliates be required to pay any fee, penalty or other consideration to any third party to obtain any consent or approval under any Contract (it being acknowledged and agreed, for the avoidance of doubt, that Parent shall pay any fee required to be paid by Parent to a Governmental Entity at the time of making any of the registrations and filings described in clause (ii) above).
(b) In furtherance of the obligations set forth in Section 5.05(a), (i) Parent shall promptly take (and shall cause each of its affiliates to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and obtain all approvals and consents, in each case, under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable, including accepting operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company Company, the Surviving Corporation or any of their respective affiliates (and the Company Subsidiaries entry into agreements with, and submission to decrees, judgments, injunctions or orders of such Governmental Entity) as may be required (to obtain such approvals or permitted without consents of such Governmental Entities or to avoid the prior consent of Parent) to makeentry of, or to offer to makeeffect the dissolution of or vacate or lift, any payments to decrees, judgments, injunctions or orders under any third parties Antitrust Laws that would otherwise have the effect of preventing or concedematerially delaying the consummation of the Transactions, or offer to concede, anything of valuesubject to, in each case, in order to obtain any consent, approval or authorization under contracts of the condition that the Transactions actually occur and (ii) the Company and shall make, subject to the Company Subsidiaries from condition that the Transactions actually occur, any personundertakings (including undertakings to accept operational restrictions or limitations or to make sales or other dispositions, provided that the Company and the Company Subsidiaries may be so required if such offerrestrictions, payment limitations, sales or concession is other dispositions are conditioned upon the consummation of the Transactions.
(b) Neither Parent nor as are required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any such decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions and the Company shall take any actionother actions and refrain from taking any other actions that Parent is required to take or refrain from taking pursuant to this Section 5.05(b). Neither Parent nor Sub, including acquiring directly or making indirectly, through one or more of their respective affiliates, shall acquire or make any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI Section 6.01(b). Parent shall have the sole and exclusive right to direct and control any litigation, negotiation or other action, with counsel of its own choosing, in connection with obtaining any approvals or consents that may be required under Antitrust Laws to consummate the consummation of the Transactions. In no event shall Transactions and the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) agrees to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Lawcooperate with Parent with respect thereto.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives of the other parties to the contrary be present at each meeting or conference with such Governmental Entity relating to such request, inquiry, investigation or legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any such Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding; provided, however, that documents and other materials described in this Section 5.06, (15.05(c) no party hereto shall may be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (Ai) to remove references concerning the valuation of Parent, the Company and the Company Subsidiaries, (ii) as necessary to comply with contractual arrangements or any of their respective Subsidiaries or applicable Laws and (Biii) as necessary to address reasonable attorney-client or other privilege concerns or confidentiality concerns.
(d) To the extent not previously provided by the Company to Parent prior to the date hereof, the Company shall deliver to Parent promptly after the date hereof (and in any event within five (25) Business Days after the date hereof) the information, documents and materials reasonably requested by Parent and Sub shall not be prior to the date hereof in order to determine whether any filing, clearance, notice or approval under any Antitrust Law (each, a “Competition Approval”) (other than under the HSR Act or pursuant to the Antitrust Laws of the jurisdictions set forth on Section 6.01(b) of the Company Disclosure Letter as of the date hereof) is required to share in connection with the Transactions. Parent shall be entitled to request any additional information, documents and materials that Parent believes in good faith are required in order to determine whether any such Competition Approvals are required in connection with the Transactions; provided, however, that any such request shall be made promptly (and in any event within three (3) Business Days after the receipt of the information, documents and materials delivered by the Company pursuant to the immediately preceding sentence). The Company shall deliver to Parent promptly (and in any event within three (3) Business Days) the information, documents and materials requested by Parent in accordance with the immediately preceding sentence. If the information, documents and materials delivered pursuant to the first or third sentences of this Section 5.05(d) are not consistent with, or reveal information that (A) does not relate is incremental to, the information, documents and materials delivered to Parent prior to the Company date of this Agreement and, solely due to such inconsistency or new information, Parent or the Company Subsidiariesdetermines in good faith within one (1) Business Day following the receipt of the information, documents and materials requested in accordance with the immediately preceding sentence, that (Bx) reveals Parent’s a Competition Approval is required in a jurisdiction that is not listed on Section 6.01(b) of the Company Disclosure Letter as of the date of this Agreement and (y) the failure to obtain such Competition Approval in such jurisdiction could result in material financial or its affiliates’) valuation material legal consequences, Parent or negotiating strategy with respect the Company, as applicable, shall give notice to the Transactions other party of such determination and Parent and the Company shall negotiate in good faith to amend or (Cmodify Section 6.01(b) is otherwise confidential or proprietary information of the Company Disclosure Letter in order to include such jurisdiction. Parent and the Company agree that, so long as the Company has complied in all material respects with its obligations pursuant to the preceding provisions of this Section 5.05(d), in no event shall any such notice be provided by Parent or the Company at any time following the 12th Business Day after the date hereof. If, following the receipt by Parent of its affiliatesthe information, documents and materials delivered pursuant to the first three sentences of this Section 5.05(d), Parent or the Company determines in good faith that no Competition Approval is required in a jurisdiction listed on Section 6.01(b) of the Company Disclosure Letter as of the date hereof, Parent or the Company, as applicable, shall give notice to the other party of such determination and Parent and the Company shall negotiate in good faith to amend or modify Section 6.01(b) of the Company Disclosure Letter in order to remove such jurisdiction therefrom.
Appears in 1 contract
Samples: Merger Agreement (Beam Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03The Shareholder, each of Parent the ------------------------------------- Company and the Company Purchaser shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary under applicable law or otherwise to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain all actions or nonactions, from any Governmental Authority any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations and or orders from Governmental Entities required to be obtained or other persons necessary made by the Purchaser or advisable the Company or any of its subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactionstransactions contemplated in this Agreement, (iiiii) make all necessary notifications and filings, and thereafter make any other required submissions and attend hearings, with respect to this Agreement and the transactions contemplated hereby required under (A) the HMO Acts and (B) any other applicable law, (iv) obtain a complete and unconditional release from liability of, or consent to assignment by, the Shareholder and/or Ramsay Health Care, Inc. ("RHCI"), as applicable, under the Lease dated October 6, 1995 between the Shareholder and American Business Credit Corporation ("ABC"), the Lease dated October 30, 1995 between the Shareholder and ABC, and the Lease dated March 24, 1995, as supplemented, between RHCI and IBM Credit Corporation (collectively, the "Affiliate Leases"), without any payment by the Shareholder or RHCI and (v) at the expense of the Shareholder, cause (x) the sublease between RHCI and the Company relating to the New Orleans office of the Company to be terminated effective as of the Closing Date, and (y) the lease between the Company and Xxx Xxxxxxxx Auto, Inc. relating to a Lexus automobile to be terminated or transferred out of the Company effective on or before the Closing Date (the sublease and lease referred to in clauses (x) and (y) being referred to hereinafter as the "Excluded Contracts"; provided that, the Shareholder, the Purchaser and the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith. The Shareholder, the Company and the Purchaser shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable law in connection with the transactions contemplated by this Agreement. Without in any way limiting the foregoing, the Purchaser shall make all necessary notifications and filings, complete in all respects, with the applicable DOI and any other Governmental Authority, as promptly as practicable and in any event within fifteen (15) business days following execution of this Agreement.
(i) The Company and (A) subject its subsidiaries and the Purchaser shall give any notices to third parties, and use all reasonable efforts to obtain any third party consents necessary to consummate the conditions set forth on Section 5.06(a) of transactions contemplated in this Agreement including those consents required to be disclosed in the Company Disclosure LetterSchedule or the Purchaser Disclosure Schedule, with respect as the case may be.
(ii) In the event that either party shall fail to obtain any third party consent described in subsection (b)(i) above, such party shall use all reasonable efforts, and shall take any such actions reasonably requested by the filings required of other party, to minimize any adverse effect upon the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of Shareholder, the Company Disclosure Letter within seven (7) Business Days and the Purchaser, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the date of this AgreementClosing, from the failure to obtain such consent.
(Bc) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after From the date of this Agreement and (C) subject until the Closing, the Shareholder or the Company shall promptly notify the Purchaser in writing of any pending or, to the conditions set forth on Section 5.06(c) knowledge of the Shareholder, threatened, action, proceeding or investigation by any Governmental Authority or any other person seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement or otherwise limit the right of the Purchaser to own or operate all or any portion of the business or assets of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(cits subsidiaries.
(d) of the Company Disclosure Letter within twenty (20) Business Days after From the date of this Agreement)Agreement until the Closing, make and not withdraw (without the Company’s consent) all registrations and filings with Purchaser shall promptly notify the Shareholder in writing of any pending or, to the knowledge of the Purchaser, threatened action, proceeding or investigation by any Governmental Entity Authority or any other persons necessary person seeking to restrain or advisable in connection with prohibit the consummation of the Transactions, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting transactions contemplated by this Agreement or otherwise limit the consummation right of the Transactions, in each case until the issuance of a final, non-appealable order with respect Purchaser to each such lawsuit own or other Proceeding, (iv) seek to have lifted operate all or rescinded any injunction or restraining order which may adversely affect the ability portion of the parties to consummate the Transactions, in each case until the issuance business or assets of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactionsits subsidiaries.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliates.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03the terms and conditions of this Agreement, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) parties hereto will use its their respective reasonable best efforts to consummate and make effective the Transactions transactions contemplated by this Agreement and to cause the conditions to the Merger set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its including using reasonable best efforts to accomplish the following: (i) promptly obtain the obtaining of all necessary actions or nonactionsnon-actions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations consents and orders approvals from Governmental Entities Authorities or other persons Persons necessary or advisable in connection with the consummation of the Transactionstransactions 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 a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (ii) the defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including the Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall as promptly as reasonably practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect upon a date to the filings required of be mutually agreed upon by the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter hereto (and in any event within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after following the date of this Agreement, unless agreed otherwise by the parties hereto), make and not withdraw (without the Company’s consent) all registrations and its respective filings with any Governmental Entity or other persons necessary or 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 or Act, and thereafter make any other applications and filings as reasonably determined by the Company and Parent under other applicable Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as practicable, but in no event later than as required by Law. Notwithstanding anything to the contrary contained in this Agreement, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or neither Parent nor any of its affiliates is a party challenging or affecting this Agreement or Affiliates shall be required to, and without the consummation prior written consent of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, none of the Company or any of the Company its Subsidiaries be required or Affiliates will, grant or offer to grant any accommodation or concession (financial or permitted without the prior consent of Parent) to makeotherwise), or to offer to makemake any payment, any payments to any third Person in connection with seeking or obtaining its consent to the transactions contemplated by this Agreement (it being understood that this sentence does not apply to the actions required by Section 5.3(d) or Section 5.3(e)).
(b) In connection with and without limiting the efforts referenced in this Section 5.3, each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of any required governmental filings or concede, submissions and will cooperate in responding to any investigation or offer to concede, anything of valueother inquiry from a Governmental Authority or in connection with any Proceeding initiated by a private party, in each case, in order to obtain under any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any actionapplicable Antitrust Laws, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give promptly informing the other parties prompt notice party of the making such inquiry or commencement of any requestProceeding, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as consulting in advance before making any presentations or submissions to the status of any such requesta Governmental Authority, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, to any other Person, and supplying each other with copies of all material correspondence, filings or communications between either party hereto will permit authorized representatives of the other parties to be present at each meeting and any Governmental Authority, or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with andany such Proceeding, between either party and any other Person with respect to this Agreement and (iii) providing the extent practicable, provided the other party with a reasonable advance opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties comment upon and will consider in good faith the views of the other parties in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) between either party and any Governmental Authority, or in connection with any filingsuch Proceeding, analysisbetween either party and any other Person with respect to this Agreement. In addition, appearance, presentation, memorandum, brief, argument, opinion each of the parties hereto will give reasonable notice to and consult with the other in advance of any meeting or proposal made or submitted to conference with any Governmental Entity Authority, or in connection with the Transactions. Notwithstanding anything any such Proceeding, with any other Person, and to the contrary extent permitted by the Governmental Authority, give the other the opportunity to attend and participate in such meeting or conference.
(c) The parties shall consult with each other with respect to obtaining all permits and Consents necessary to consummate the transactions contemplated by this Agreement, including the Merger.
(d) Subject to the limitations set forth below in Section 5.065.3(e), (1) no party hereto shall Parent agrees to take, or cause to be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law taken (including the HSR Act by its Subsidiaries), any and all steps and to make, or cause to be made (including by its Subsidiaries), any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as and all undertakings necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company resolve such objections, if any, that a Governmental Authority may assert under any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy Antitrust Law with respect to the Transactions transactions contemplated by this Agreement, and to avoid or eliminate any impediment under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement, in each case, so as to enable the Closing to occur as promptly as practicable and in any event no later than the Termination Date, including, without limitation, (Cx) is proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any businesses, assets, equity interests, product lines or properties of the Company, (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of the Company and (z) otherwise confidential taking or proprietary information committing to take any action that would limit Parent’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of the Company, in each case as may be required in order to obtain all expirations or terminations of waiting periods required under any Antitrust Law or to avoid the commencement of any action by a Governmental Authority to prohibit the transactions contemplated by the Agreement under any Antitrust Law, or, in the alternative, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any action or proceeding seeking to prohibit the transactions contemplated by this Agreement or delay the Closing beyond the Termination Date. To assist Parent in complying with its obligations set forth in this Section 5.3(d), the Company shall enter into one or more agreements requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that limits the Company’s freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses, assets, equity interests, product lines or properties of the Company (each, a “Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Divestiture Action shall be conditioned upon the Closing or satisfaction of all of the conditions to Closing in a case where the Closing will occur immediately following such Divestiture Action (and where Parent has irrevocably committed to effect the Closing immediately following such Divestiture Action).
(e) Notwithstanding anything in this Agreement to the contrary, none of Parent or any of its affiliatesAffiliates shall be required to take any Divestiture Action or otherwise agree to or proffer to sell, divest, hold separate, lease, license, transfer, dispose of or otherwise encumber or impair or take any other action with respect to Parent’s or any of its Affiliates’ ability to own or operate any assets, properties, businesses or product lines of Parent or any of its Affiliates (including, for the avoidance of doubt, any Securities of the Company or its Subsidiaries) or, except as would not have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries, taken as a whole, any assets, properties, businesses or product lines of the Company or any of its Subsidiaries; provided, however, that none of Parent or any of its Affiliates shall be required to take any action contemplated in Section 5.3(d) or this Section 5.3(e) in connection with any Proceeding by a Person other than a Governmental Authority, and the Company shall not, and shall not cause or permit any of its Subsidiaries to, unless requested to do so by Parent, commit to or effect any action contemplated in Section 5.3(d) or this Section 5.3(e).
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to the terms and conditions of this Agreement and except to the extent permitted by Section 5.035.1, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its commercially reasonable best efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable under applicable Law to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, (ii) take prompt action to obtain all actions or nonactions, from any Governmental Entity any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made by the Company and orders from Parent or any of their Subsidiaries, or to avoid any action or proceeding by any Governmental Entities or other persons necessary or advisable Entity (including, without limitation, those in connection with the consummation of HSR Act or other foreign Law or regulations and to make the Transactions, requisite initial filing in connection with the HSR Act not later than two (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (202) Business Days after the 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 or advisable in connection with the consummation authorization, execution and delivery of the Transactions, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or and the consummation of the Transactionstransactions contemplated herein, in each case until the issuance of a finaland (iii) make all necessary filings, non-appealable order and thereafter make any other required submissions, with respect to this Agreement and the Merger required under the Securities Act, the Exchange Act and any other applicable Law; provided, however, that the Company and Parent shall cooperate with each other in connection with the making of all such lawsuit filings, including, subject to applicable Law, providing copies of all such documents to the non-filing party and giving due consideration to reasonable additions, deletions or changes suggested in connection therewith. The Company and Parent shall furnish to each other all information required for any application or other Proceeding, (iv) seek filing to have lifted or rescinded be made pursuant to the rules and regulations of any injunction or restraining order which may adversely affect applicable Law in connection with the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms transactions contemplated by this Agreement. In no event shall Parent, SubSubject to the terms and conditions of this Agreement and except to the extent permitted by Section 5.1, the Company or and Parent shall not take any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to makeaction, or refrain from taking any action, the effect of which would be to offer to make, any payments to any third parties delay or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts impede the ability of the Company and Parent to consummate the Company Subsidiaries from any persontransactions contemplated by this Agreement, provided that unless in such party’s reasonable judgment, taking such action is consistent with achieving the Company and ultimate objective of consummating the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the TransactionsMerger.
(bi) Neither Parent nor The parties hereto will consult and cooperate with one another, and consider in good faith the Company shall take views of one another, in connection with any actionanalyses, including acquiring appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or making submitted by or on behalf of any investment party hereto in any person connection with proceedings under or relating to HSR or any division other federal or assets thereof, that would reasonably be expected to prevent state Antitrust Law or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under fair trade Law.
(cii) Without limiting Each of Parent and the generality of anything contained in this Section 5.06Company shall use reasonable best efforts to resolve such objections, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any requestif any, inquiry, investigation, action or other Proceeding as may be asserted by or before any Governmental Entity with respect to the Transactions; transactions contemplated by this Agreement under HSR, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (iicollectively, “Antitrust Laws”). In connection therewith, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) keep challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, each of Parent and the Company shall cooperate and use commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other parties informed order, whether temporary, preliminary or permanent (each, an “Order”), that is in effect and that prohibits, prevents, or restricts consummation of the Merger or any such other transactions, unless by mutual agreement Parent and the Company decide that litigation is not in their respective best interests. Notwithstanding the provisions of the immediately preceding sentence, it is expressly understood and agreed that neither Parent nor the Company shall have any obligation to litigate or contest, beyond the Termination Date, any administrative or judicial action or proceeding or any Order. Each of Parent and the Company shall use reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement. Parent and the Company also agree to take any and all of the following actions to the status extent necessary to obtain the approval of any such request, inquiry, investigation, action Governmental Entity with jurisdiction over the enforcement of any applicable Law regarding the transactions contemplated hereby: entering into negotiations; providing information required by Law or other Proceedinggovernmental regulation; and substantially complying with any second request for information pursuant to the Antitrust Laws.
(iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.065.4, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) neither Parent nor any of its Subsidiaries shall be required to remove references concerning the valuation of Parent, the Company or divest any of their respective Subsidiaries businesses, product lines or assets, or to take or agree to take any other action or agree to any limitation, in each case if such action or agreement would reasonably be expected to have a Material Adverse Effect on Parent or of Parent combined with the Surviving Corporation after the Effective Time and (B) as necessary to address privilege concerns and (2) Parent and Sub neither the Company nor its Subsidiaries shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or divest any of its affiliatestheir respective businesses, product lines or assets, or to take or agree to take any other action or agree to any limitation, in each case if such action or agreement would reasonably be expected to have a Material Adverse Effect on the Company.
(c) (i) The Company and Parent shall, or shall cause their respective Subsidiaries to, use commercially reasonable efforts to give any notices to third parties, and to obtain any third party consents, in each case necessary, proper or advisable in order to consummate the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Oce N V)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, each of Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and Parent shall cause each of the Company Subsidiaries its affiliates to) use its reasonable best efforts to (i) promptly obtain all actions or nonactionsnon-actions, consents, Permits licenses, permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactionstransactions contemplated hereby, including the Company Required Governmental Approvals and Parent Required Governmental Approvals, (ii) as promptly as practicable practicable, and in any event within fifteen (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (715) Business Days after the date of this Agreementhereof, (B) with respect to make the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or advisable in connection with the consummation of the Transactions, including the filings required of the parties them or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisableAct, (iii) as promptly as practicable, make all registrations and filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with any other Governmental Entity or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, (iv) defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactionstransactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingproceeding, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactionstransactions contemplated hereby, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on transactions contemplated hereby.
(b) In furtherance of the terms obligations set forth in Section 5.06(a), (i) Parent agrees to use its reasonable best efforts to take (and to cause its affiliates to take) promptly any and all steps or promptly make any and all undertakings necessary to obtain the Company Required Governmental Approvals and the Parent Required Governmental Approvals, so as to enable the parties to close the transactions contemplated by this Agreement. In no event shall ParentAgreement as promptly as practicable (including accepting operational restrictions or limitations and committing to or effecting the sale, Sublicense, disposition or holding separate of such assets or businesses as are required (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity)) and (ii) the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) shall use its reasonable best efforts to make, or subject to offer to makethe condition that the transactions contemplated herein actually occur, any payments undertakings (including undertakings to make sales or other dispositions, provided that such sales or other dispositions are conditioned upon the closing of the transactions contemplated hereby) as are required in order to obtain the Company Required Governmental Approvals and the Parent Required Governmental Approvals. Notwithstanding the obligations set forth in this Section 5.06(b), Parent shall not be required to, and the Company shall not, in connection with obtaining any third parties the Company Required Governmental Approvals and the Parent Required Governmental Approvals, consent to or concedetake any action of the types described above, including accepting or offer to concedeentering into any operational restriction, anything of valueconsent decree or hold separate order or making any divestiture or other undertaking, in each case, that, individually or in order the aggregate, would reasonably be expected to obtain any consent(A) have a material adverse effect on the business, approval assets, liabilities, financial condition or authorization under contracts results of operations of the Company and the Company Subsidiaries from any personSubsidiaries, taken as a whole, or (B) have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger and the terms and conditions of the Company Required Governmental Approvals and the Parent Required Governmental Approvals (provided that for the purpose of determining whether a potential adverse effect on Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger and the terms and conditions of the Company Required Governmental Approvals and the Parent Required Governmental Approvals would constitute a material adverse effect for the purposes of this Section 5.06(b)(B), Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger, shall be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size and scale of the Company and the Company Subsidiaries may be so required if such offerits Subsidiaries, payment or concession is conditioned upon the consummation taken as a whole) (each of the Transactions.
effects described in clauses (bA) and (B) of this sentence being referred to herein as a “Burdensome Effect”). Neither Parent nor the Company Sub, directly or indirectly through one or more of their respective affiliates, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawMerger.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of any material communication from any Governmental Entity in connection with the transactions contemplated by this Agreement and of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the Transactionstransactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the Antitrust Division, the FTC, the Antitrust Division FERC, the PUCN or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) The Company agrees to use its reasonable best efforts to take (and to cause the Transactions. Notwithstanding anything Company Subsidiaries to take) (which shall not include the expenditure of funds), at Parent’s sole cost and expense, such actions as Parent shall reasonably request to obtain consents, waivers, or approvals under Material Contracts with respect to the contrary in transactions contemplated by this Section 5.06Agreement; provided, however, that (1i) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub each Company Subsidiary shall not be required to share with incur any Indebtedness pursuant to this Section 5.06(d) and (ii) the Company any information that (A) does not relate and each Company Subsidiary shall only be required to enter into an obligation or commitment if such obligation or commitment is conditioned upon the Company or closing of the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy transactions contemplated by this Agreement and will be effective with respect to the Transactions Company and the Company Subsidiaries only on or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesafter the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Nv Energy, Inc.)
Appropriate Action; Consents; Filings. (a) Subject to the terms and conditions of this Agreement (including Section 5.03), each of Parent and the Company shall (and Parent shall cause each of its their affiliates to) use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper and advisable to consummate the Transactions contemplated by this Agreement and to cause the conditions set forth in Article VI and Annex II to be satisfied, in each case satisfied as promptly as reasonably practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable ’s affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries and each of the Company’s and the Company Subsidiaries’ affiliates to) use its reasonable best efforts to (i) cause the expiration or termination of the waiting period under the HSR Act as promptly as practicable and to promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, clearances, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable that are required in connection with the consummation of the Transactionstransactions contemplated by this Agreement, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letterpracticable, and, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this AgreementHSR Act, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or advisable required in connection with the consummation of the Transactionstransactions contemplated by this Agreement, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto in connection therewith that may be necessary or advisable, advisable and (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver deliver, as promptly as practicable, any additional instruments necessary or advisable to consummate the Transactions on the terms transactions contemplated by this Agreement. In no event shall Parent, Sub, Without limiting the Company or any generality of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of valueforegoing, in each case, in order connection with the preparation and filing of all documentation with respect to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries all Permits necessary to be obtained from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of Governmental Entity in connection with the Transactions, each party hereto will consult and cooperate with the other parties in good faith; provide such information and assistance as is reasonably requested by the other parties to complete any such documentation; permit the other parties hereto a reasonable opportunity to review and comment on such documentation in advance; and incorporate any reasonable comments of such other parties.
(b) Neither Notwithstanding anything to the contrary set forth in this Agreement, Parent nor and the Company shall, and shall cause each of their respective affiliates to, use their reasonable best efforts to take promptly any actionand all steps reasonably necessary to avoid or resolve each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity or any other person in connection with this Agreement so as to enable the Closing to occur expeditiously (and in any event, no later than the Outside Date), including acquiring by becoming subject to, consenting to, or making offering or agreeing to, and otherwise taking action with respect to, any investment in any person requirement, condition, limitation, understanding, agreement or order to: (i) sell, license, divest or otherwise dispose of assets, business or any division portion of the business of the Company, any Company Subsidiary, Parent or assets thereofany of their respective affiliates; (ii) change the assets, that would reasonably be expected to prevent business or cause any portion of the business of the Company, any Company Subsidiary, Parent or any of their respective affiliates; (iii) impose any restriction, requirement or limitation on the operation of the business or any portion of the business of the Company, any Company Subsidiary, Parent or any of their respective affiliates; (iv) terminate any relevant venture or other arrangement; or (v) litigate (or defend) against any administrative or judicial Proceeding (including any Proceeding seeking a material delay temporary restraining order or preliminary injunction) challenging any of the transactions contemplated by this Agreement as violative of any Antitrust Law, unless the taking of any or all such actions contemplated by the foregoing clauses (i) through (v) (A) would, individually or in the satisfaction aggregate, result in a Burdensome Condition or (B) in the case of the conditions contained in Article VI or the foregoing clauses (i) through (iv), is not conditioned upon consummation of the Transactions. In no event shall Closing; provided, that, if requested by Parent, the Company and any Company Subsidiary will become subject to, consent to, or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or any of such Company Subsidiary after the Closing (in the event the Closing occurs); provided, further that, unless requested by Parent pursuant to the immediately foregoing proviso, neither the Company Subsidiaries be permitted (nor any Company Subsidiary will, without the prior written consent of Parent) to provide or concede, become subject to, consent to, or offer to provide or concedeagree to, anything or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order if the taking of value any or all such actions would, individually or in order to obtain any consentthe aggregate, approval or authorization under Lawresult in a Burdensome Condition.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactionstransactions contemplated by this Agreement; (ii) keep the other parties reasonably and timely informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactionstransactions contemplated by this Agreement; (iv) use their reasonable best efforts to respond as promptly as practicable to any inquiries received from any Governmental Entity or any other authority enforcing applicable Antitrust Laws for additional information or documentation in connection with antitrust, competition or similar matters (including a “second request” under the HSR Act); provided that the parties agree that it is Parent’s sole right to devise the strategy for all filings, notifications, submissions and communications in connection with any filing pursuant to Antitrust Laws subject to this Section 5.05, so long as such strategy complies with the terms and conditions of this Agreement; and (v) to the extent permitted by Law and subject to the terms and conditions of this Agreement (including this Section 5.05), provide such assistance as the other parties hereto may reasonably request in connection with the taking of the actions contemplated by this Section 5.05, including supplying the other parties hereto with any information that such other parties may reasonably request in order to effectuate the taking of such actions. Each party hereto will consult and cooperate with the other parties and, to the extent reasonably practicable, permit the other parties hereto a reasonable opportunity to review and discuss in advance, and will consider the views of the other parties 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 contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives Representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to, be consulted in connection with to and, to the extent practicable, provided the opportunity to review be consulted in advance in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding. Each party hereto will consult and cooperate with ; provided, however, that the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive permitted to one another on an “outside counsel only” redact any correspondence, filing or other basis designed to ensure compliance with applicable Law communication (including the HSR Act or any other Antitrust Law) or redacted (Ax) to remove the extent such correspondence, filing or communication contains references concerning the valuation of Parentthe Company and the Company Subsidiaries, the Company or any of their respective Subsidiaries Offer and the Merger or (By) as necessary to address reasonable privilege concerns and (2) concerns. Parent and Sub the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.05 as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. For the avoidance of doubt, notwithstanding the foregoing, the terms of this Section 5.05 shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy apply with respect to matters that are the Transactions or (C) is otherwise confidential or proprietary information subject of Parent or any of its affiliatesSection 5.13.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates affiliated investment funds to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable affiliates ’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 or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter in any event within seven (7) ten Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this AgreementTransactions. 37
(b) In no event shall Parent, Sub, the Company or any furtherance of the Company Subsidiaries be required obligations set forth in Section 5.05(a), Parent shall (and shall cause its affiliated investment funds to) use reasonable best efforts to promptly take any and all actions necessary or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, advisable in order to obtain any consent, approval avoid or authorization under contracts of the Company eliminate each and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon every impediment to the consummation of the Transactions.
(b) Transactions and obtain all approvals and consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable. Neither Parent nor the Company Sub, directly or indirectly, through one or more of their respective affiliated investment funds, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary In addition, except as may be prohibited by any Governmental Entity or by any Law, in this Section 5.06connection with any such request, (1) no inquiry, investigation or legal Proceeding, each party hereto shall will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to and be consulted in violation of this Agreement by virtue of providing information that is competitively sensitive connection with any document, opinion or proposal made or submitted to one another on an “outside counsel only” any Governmental Entity in connection with such request, inquiry, investigation or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliateslegal Proceeding.
Appears in 1 contract
Samples: Merger Agreement
Appropriate Action; Consents; Filings. (a) Subject Parent shall (and shall cause Sub, the Guarantor and each of its and their applicable affiliates to) and, subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates Subsidiaries to) ), use its respective reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article ARTICLE VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor Sub and its and each of their applicable affiliates to) and use its reasonable best efforts to and, subject to Section 5.03, the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to to: (i) promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter in any event within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, solely with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this AgreementHSR Act), make and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or advisable in connection with the consummation of the Transactions, including the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) contest and defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order Order with respect to each such lawsuit or other Proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties hereto to consummate the Transactions, in each case until the issuance of a final, non-appealable order Order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions Transactions, and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on Transactions. The Company and the terms contemplated by Company Subsidiaries shall not be required to make any concessions under this Section 5.06 that are not conditioned upon the Closing.
(b) In furtherance of the obligations set forth in Section 5.06(a) and notwithstanding any limitations therein or elsewhere in this Agreement. In no event , (i) Parent shall promptly take (and shall cause Sub, the Guarantor and each of its and their applicable affiliates to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and obtain all approvals and consents, including approvals and consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable, including operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company Company, the Surviving Corporation or any of their respective affiliates (and the Company Subsidiaries entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required (or permitted without advisable to obtain such approvals or consents of such Governmental Entities or to avoid the prior consent of Parent) to makeentry of, or to offer to effect the dissolution of or vacate or lift, any Orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions and (ii) the Company may make, subject to the condition that the Transactions actually occur, any payments undertakings (including undertakings to any third parties accept operational restrictions or concede, limitations or offer to concede, anything of value, in each case, in order to obtain any consent, approval make sales or authorization under contracts of the Company and the Company Subsidiaries from any personother dispositions, provided that the Company and the Company Subsidiaries may be so required if such offerrestrictions, payment limitations, sales or concession is other dispositions are conditioned upon the consummation of the Transactions.
(b) as are required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions. Neither Parent nor the Company Sub, directly or indirectly, through one or more of their respective affiliates or otherwise, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article ARTICLE VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawMerger.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties hereto prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views and comments of the other parties 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. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or Proceeding and to have access to and be consulted in connection with, and to the extent practicable, provided the opportunity to review and provide comments to in advance (and the other party shall reasonably consider in good faith the inclusion therein of any such comments timely provided), any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law).
(d) or redacted (A) to remove references concerning This Section 5.06 does not govern the valuation obligations of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with obtain the Company any information that Financing (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliateswhich are instead governed by Section 5.07).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Navigant Consulting Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions Merger and the other transactions contemplated hereby and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and each of its and their applicable affiliates 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 or nonactions, consents, Permits consents (including Environmental Required Consents), Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, Merger and the other transactions contemplated hereby and (ii) as promptly as practicable practicable, and in any event within thirty (and (A30) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement)hereof, make and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or advisable in connection with the consummation of the TransactionsMerger and the other transactions contemplated hereby, including the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under the HSR Act or any other Antitrust LawLaw and any Insurance Laws and Insurance Regulations, including Applications for Approval of Acquisition of Control Statements, or “Form A Statements,” with the Insurance Regulators of the States of California, Michigan, Missouri and Ohio and of Washington, D.C., and promptly make any further filings pursuant thereto that may be necessary or advisable.
(b) In furtherance of the obligations set forth in Section 5.06(a), Parent shall promptly take (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any and shall cause each of its affiliates is a party challenging to take) any and all actions necessary or affecting this Agreement or the consummation of the Transactions, advisable in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceeding, (iv1) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions Merger and (vi) execute and deliver any additional instruments necessary or advisable the other transactions contemplated hereby to enable the parties to consummate the Transactions on Merger and the terms other transactions contemplated hereby and (2) obtain all approvals and consents under any Antitrust Laws or Insurance Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement. In no event shall ParentAgreement as promptly as practicable; provided, Subhowever, the Company that none of Parent or any of the Company Subsidiaries its affiliates shall be required (obligated to take, or permitted without the prior consent of Parent) to makerefrain from taking, or to offer agree to maketaking or refraining from taking, any payments to any third parties or concedeaction that would, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause to, result in a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawBurdensome Condition.
(c) Without limiting Subject to applicable Law relating to the generality exchange of anything contained in this Section 5.06information and the direction, each party hereto shall: requests or guidance of any applicable Governmental Entity, the Company and Parent and their respective counsel shall (i) give have the other parties prompt notice of the making or commencement of any requestright to review in advance, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will practicable each shall consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with on, any filingfiling made with, analysisor written materials to be submitted to, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactionstransactions contemplated by this Agreement, (ii) promptly inform each other of any communication (or other correspondence or memoranda) received from, or given to, the U.S. Department of Justice, the FTC, or any other Governmental Antitrust Authority or any Insurance Regulator and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or affiliates, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to the Merger and the other transactions contemplated by this Agreement. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any discussion, telephone call or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the Merger and the other transactions contemplated by this Agreement and to participate in the preparation for such discussion, telephone call or meeting. Neither Parent nor the Company shall commit to or agree with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act, without the prior written consent of the other. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.06 as “Antitrust Counsel Only Material”. Notwithstanding anything to the contrary in this Section 5.06, (1) no materials provided to the other party hereto shall or its counsel may be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any and the Company Subsidiaries.
(d) Each of their respective Subsidiaries or (B) as necessary to address privilege concerns Parent and (2) Sub agrees that, between the date of this Agreement and the Closing Date, each of Parent and Sub shall not be required to share with the Company any information not, and shall ensure that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any none of its affiliatesSubsidiaries or other affiliates shall, take any action or propose, announce an intention or agree, in writing or otherwise, to take any action that would reasonably be expected to materially delay or prevent the consummation of the Merger and the other transactions contemplated hereby.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to the terms and conditions of this Agreement, including, without limitation, Section 5.036.2(f) and Section 6.2(g), each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) Party will use its reasonable best efforts to (i) promptly obtain take, or cause to be taken, all actions and to do, or nonactionscause to be done, consentsall things necessary, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary proper or advisable in connection with under applicable Laws to cause the consummation of the Transactions, (ii) conditions to Closing to be satisfied as promptly as reasonably practicable (and in any event no later than the Outside Date (Aas defined below) subject (as the same may be extended)) and to consummate and make effective the conditions set forth on Section 5.06(a) of Merger and the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days other Transactions as soon as practicable after the date of this Agreement, (B) including preparing and filing, in consultation with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement other Party and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days as promptly as reasonably practicable and advisable after the date of this Agreement, all documentation to effect all necessary (or advisable, in Parent’s sole discretion) applications, notices, petitions, filings, registrations, notifications, statements, submissions of information and other documents (including any required (or recommended, Parent’s sole discretion) filings under applicable Laws), make ; (ii) obtain as promptly as reasonably practicable (and not withdraw in any event no later than the Outside Date (without as the Company’s consentsame may be extended)) all registrations waiting period expirations or terminations, approvals, Consents, clearances, registrations, Permits and filings with any Governmental Entity or other persons authorizations necessary or advisable to be obtained from any Governmental Authority in order to consummate the Merger or any of the other Transactions; and (iii) obtain all necessary Consents, approvals or waivers from third parties in connection with the Merger and the other Transactions. In furtherance and not in limitation of the foregoing, each Party agrees (x) to make all necessary applications, notices, petitions and filings required with respect to this Agreement or the Transactions in connection with (A) the pre-merger notification under the HSR Act as promptly as reasonably practicable but in no case later than ten Business Days after execution of this Agreement and (B) the pre-merger notification to any Specified Antitrust Authority (other than in the United States), if any, as promptly as reasonably practicable after the execution of this Agreement (in each case, unless another date is mutually agreed between the Parties), or where the ability to control timing of the application, notice, petition or filing is not within the control of the submitting Party, commence pre-submission consultation procedures for, any applications notices, petitions or filings with the Specified Antitrust Authorities, and (y) to promptly determine whether any other filings are required to be made with, and whether any other Consents, approvals, Permits or authorizations are required to be obtained from, any Governmental Authority under any other applicable Law in connection with the Transactions, and if so, to prepare and file any such filings and to seek any such other Consents, approvals, Permits or authorizations (the filings described in the foregoing clauses (i) through (ii), collectively, “Regulatory Filings”).
(b) Subject to Section 6.2(f) and Section 6.2(g), in connection with, and without limiting, the efforts or the obligations of the Parties under Section 6.2(a), each of Parent and the Company will, to the extent permitted by applicable Law and not prohibited by the applicable Governmental Authority and subject to all applicable privileges (including the attorney client privilege), (i) cooperate and coordinate with the other in the making of Regulatory Filings (and, to the extent permitted by applicable Law and subject to the provisions of Section 6.1(c), the Company will provide copies, or portions thereof, of all such documents to Parent prior to filing and consider all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation, request or other inquiry of any Governmental Authority under any applicable Law with respect to any such filing, (ii) supply outside counsel for the other Party with any information and reasonable assistance that may be required or reasonably requested in connection with the making of such filings, (iii) supply, during the relevant waiting periods, any additional or supplemental information that may be required or reasonably requested by the Federal Trade Commission (the “FTC”), the DOJ, and the relevant Governmental Authorities of any applicable jurisdiction in which any such filing is made under any other applicable Law and (iv) use reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to obtain the expiration or termination of the applicable waiting periods (and any extension thereof) or of the required approvals (the “Antitrust Approvals”) under the HSR Act, or any other Antitrust Law, in each case, as promptly as reasonably practicable, and to avoid any impediment to the consummation of the Transactions, including the filings required of Merger, under any applicable Law, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, as the parties or their “ultimate parent entities” under FTC, the HSR Act DOJ, or any other Governmental Authority may assert under Antitrust LawLaws with respect to the Merger or the other Transactions.
(c) Promptly following the Closing, the Parent will cause the Surviving Company to deliver to the IIA the IIA Notice and IIA Undertaking executed by the Parent and/or its affiliates.
(d) Each of Parent and Merger Sub (and their respective affiliates, if applicable), on the one hand, and the Company (and the Company Subsidiaries, if applicable), on the other hand, will, to the extent practicable and unless prohibited by applicable Law or by the applicable Governmental Authority and subject to all applicable privileges (including the attorney client privilege), promptly make inform outside counsel for the other Party of any further filings pursuant thereto that may material communication from any Governmental Authority regarding any of the Transactions in connection with any Regulatory Filings or investigations with, by or before any Governmental Authority relating to this Agreement or the Transactions, including any Actions initiated by a private party. If any Party or Subsidiary or other affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to a Regulatory Filing, then such Party shall use its reasonable best efforts to make, or cause to be necessary made, as soon as reasonably practicable, an appropriate response in compliance with such request. In connection with and without limiting the foregoing, to the extent reasonably practicable and unless prohibited by applicable Law or advisableby the applicable Governmental Authority, the Parties will (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Merger or any other Transactions, (ii) give each other’s outside counsel an opportunity to participate in each of such meetings, (iii) defend all lawsuits or keep each other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order reasonably apprised with respect to each such lawsuit any material communications with any Governmental Authority regarding the Merger or any other ProceedingTransactions, (iv) seek to have lifted cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or rescinded other written communications explaining or defending the Merger or any injunction or restraining order which may adversely affect the ability of the parties to consummate the other Transactions, in each case until the issuance of a final, non-appealable order with respect theretoarticulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Authority, (v) seek provide each other with a reasonable advance opportunity to resolve review and comment upon, and consider in good faith the views of each other with respect to, all material written communications (including joint applications, analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Authority regarding the Merger or any objection or assertion by any Governmental Entity challenging this Agreement or the other Transactions and (vi) execute and deliver provide each other (or its counsel, as appropriate) with copies of all material written communications to or from any additional instruments necessary or advisable Governmental Authority relating to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company Merger or any other Transactions. Subject to applicable Law relating to the exchange of the Company Subsidiaries be required information, Parent (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of good faith consultation with the Company and after due consideration of the Company’s reasonable suggestions) will have the right (A) to direct all matters with any Governmental Authority relating to the Transactions and (B) to review in advance, and direct the revision of, any filing, application, notification or other document to be submitted by the Company Subsidiaries from to any personGovernmental Authority under any Antitrust Law. The Company will not proffer, provided that make proposals, negotiate, execute, carry out or submit to any agreements or Orders with any Governmental Authority in connection with the Transactions without mutual agreement to take such action between Parent and the Company and the Company Subsidiaries may any such action will be so required if such offer, payment or concession is conditioned upon on the consummation of the Transactions.
(be) Neither Any disclosures, rights to participate or provisions of information by one Party to the other under this Section 6.2 may be made on a counsel-only basis to the extent required under applicable Law.
(f) For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, including in the foregoing provisions of this Section 6.2, in no event will Parent or any of its Subsidiaries or other affiliates be obligated to (i) propose, negotiate, agree or commit to, effect or undertake (A) any action that materially limits the freedom of action with respect to the business conduct of, or the ability to operate any of the businesses, product lines or assets of, Parent or any of its Subsidiaries, (B) any sale, divestiture, transfer, license, disposition or hold separate (through the establishment of a trust or otherwise) of any assets, properties or businesses of Parent or any of its Subsidiaries; or (C) any action that could, individually or in the aggregate, reasonably be anticipated to have a material adverse impact on the business or financial condition of Parent or any of its Subsidiaries, including, following the Merger, the Surviving Company, or (ii) commence or participate in any lawsuit or other Action, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or any of the other Transactions.
(g) Notwithstanding anything to the contrary in this Section 6.2, neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, will be required to (and the Company will not, without Parent’s prior written consent) agree to any term or take or omit to take any action in connection with obtaining the Antitrust Approvals that is not conditioned upon the consummation of the Merger and the other Transactions.
(h) From and after the date of this Agreement until the earlier of the Effective Time or on the date, if any, on which this Agreement is terminated in accordance with Section 8.1, neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, shall take take, directly or indirectly, through one or more of their respective affiliates or otherwise, any action, including acquiring or making any investment in any person Person or any division or assets thereof, that if such action would reasonably be expected to prevent have the effect of preventing or cause causing a material delay in the satisfaction of the conditions condition to Closing contained in Article VI Section 7.1(b) or Section 7.1(c) or the consummation of the Merger or the other Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give Parent and the other parties prompt notice Company will each be responsible for and timely pay 50% of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity filing fees associated with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or filings and any other filings made pursuant to any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliates.
Appears in 1 contract
Samples: Merger Agreement (WalkMe Ltd.)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent HH Finance, Parent, Sub and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions transactions contemplated by this Agreement and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause SubParent, the Guarantor and its and their applicable affiliates to) Sub and the Company shall (and Parent, HH Finance and Sub shall cause each of the Company their Subsidiaries to) use its their respective reasonable best efforts to (i) promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactionstransactions contemplated by this Agreement, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter in any event within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make (and cause their relevant affiliates required to make in accordance with the HSR Act) and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or advisable the FTC and Antitrust Division in connection with the consummation of the Transactionstransactions contemplated by this Agreement, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or Act, (iii) as promptly as practicable, and in any event within 20 Business Days after the date of this Agreement, make (and cause their relevant affiliates required to make in accordance with applicable Antitrust Law) and not withdraw (without the Company’s 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 advisable, (iiiiv) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactionstransactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceeding, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactionstransactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect thereto, (vvi) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions transactions, and (vivii) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms transactions contemplated by this Agreement. ; provided, that in the event that the FTC, Antitrust Division or any foreign Governmental Entities under any other Antitrust Law is closed or not accepting filings as required under subclauses (ii) and (iii) hereto, (a “Governmental Closure”), then the periods provided under subclauses (ii) and (iii), as applicable, shall be extended day-for-day, for each Business Day the Governmental Closure is in effect.
(b) In no event furtherance of the obligations set forth in Section 5.05(a), (i) Parent and Sub shall promptly take (and shall cause each of its Subsidiaries to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the transactions contemplated by this Agreement and obtain all approvals and consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement as promptly as practicable, including accepting operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company Company, the Surviving Corporation or any of their respective controlled affiliates (and the Company Subsidiaries entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required (or permitted without advisable to obtain such approvals or consents of such Governmental Entities or to avoid the prior consent of Parent) to makeentry of, or to offer to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the transactions contemplated by this Agreement and (ii) the Company may make, subject to the condition that the transactions contemplated by this Agreement actually occur, any payments undertakings (including undertakings to any third parties accept operational restrictions or concede, limitations or offer to concede, anything of value, in each case, in order to obtain any consent, approval make sales or authorization under contracts of the Company and the Company Subsidiaries from any personother dispositions, provided that the Company and the Company Subsidiaries may be so required if such offerrestrictions, payment limitations, sales or concession is other dispositions are conditioned upon the consummation of the Transactions.
transactions contemplated by this Agreement) as are required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the transactions contemplated by this Agreement (bthe matters described in this sentence, individually or collectively, “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Agreement, in no event shall anything in this Agreement (including this Section 5.05) require, or be construed to require, Parent or its affiliates or Subsidiaries to take, or propose or agree to take, any Remedy Actions that, individually or in the aggregate with all other Remedy Actions, would, or would be reasonably expected to, have a material adverse effect on the business, results of operations, assets or financial condition of the Parent and its Subsidiaries (including the Company and its Subsidiaries) after taking effect of the Merger (but for this purpose measuring the business, results of operations, assets and financial condition of Parent and its Subsidiaries (including the Company and its Subsidiaries) as though they were the same size and amounts as those of just the Company and the Company Subsidiaries, taken as a whole). The Company shall not take, or agree to take, any Remedy Actions, without the prior written consent of Parent. Neither Parent nor the Company Sub, directly or indirectly, through one or more of their respective controlled affiliates, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactionstransactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any substantive communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited transactions contemplated by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceedingthis Agreement. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactionstransactions contemplated by this Agreement; provided, however, that the parties shall not be required to provide the other with copies of their Notification and Report Form under the HSR Act. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each substantive meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to and be consulted in connection with any substantive document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding. Notwithstanding anything to the contrary in this Section 5.065.05, (1x) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or and (y) materials provided to the other party pursuant to this Section 5.05 may be redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or Subsidiaries, (B) as necessary to comply with contractual arrangements, and (C) as necessary to address privilege concerns or confidentiality concerns.
(d) The parties hereby acknowledge that all obligations of Parent, Sub and (2) Parent and Sub shall not be required to share with the Company relating to obtaining regulatory approvals (including, but not limited to, the expiration or termination of any information that (Aapplicable HSR Act waiting period or similar waiting period pursuant to any other Antitrust Law) shall be governed exclusively by this Section 5.05. For the avoidance of doubt, the immediately preceding sentence does not relate limit the remedies otherwise expressly available to a party pursuant to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy terms of Agreement with respect to another party’s breach of this Section 5.05 (including remedies described in Article VII or Article VIII), subject to in each case to the Transactions or (C) is otherwise confidential or proprietary information terms and conditions of Parent or this Agreement with respect to any such remedies, including the other subsections of its affiliatesthis Section 5.05 and the limitations set forth in Article VII and Article III.
Appears in 1 contract
Samples: Merger Agreement (Innerworkings Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) and, subject to Section 5.03, the Company shall (and shall cause each of its affiliates to), each use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article ARTICLE VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and each of its and their applicable affiliates to) and and, subject to Section 5.03, the Company shall (and shall cause each of the Company Subsidiaries and the Company’s affiliates to) ), use its reasonable best efforts to (i) promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” notification and report forms under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter HSR Act within seven ten (710) Business Days Days, after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or advisable in connection with the consummation of the Transactions, including the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under the HSR Act or any other Antitrust Law or foreign investment Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) contest and defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the earlier of (x) the issuance of a final, non-appealable order Order with respect to each such lawsuit Proceeding or other Proceeding(y) the Outside Date, (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 each case until the earlier of (x) the issuance of a final, non-appealable order Order with respect theretothereto or (y) the Outside Date, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on Transactions. Parent, the terms contemplated by Company and their respective affiliates shall not be required to agree to any sales, licenses, dispositions, hold separates or other remedies or conditions under this Section 5.07 that are not conditioned upon the Closing.
(b) In furtherance of the obligations set forth in Section 5.07(a) and notwithstanding any limitations therein or elsewhere in this Agreement. In no event , Parent shall, as promptly as possible, take (and shall cause each of its affiliates to take as promptly as possible) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions under any Antitrust Laws or foreign investment Laws and obtain all approvals and consents, including approvals and consents under any Antitrust Laws or foreign investment Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as possible, including operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company Company, the Surviving Corporation or any of their respective affiliates (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required or advisable to obtain such approvals or consents of such Governmental Entities under any Antitrust Laws or foreign investment Laws or to avoid the entry of, or to effect the dissolution of or vacate or lift, any Orders pursuant to any Antitrust Laws or foreign investment Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided, however, that notwithstanding anything to the contrary contained in this Agreement, Parent and its affiliates shall not be required to (and the Company, the Company Subsidiaries and their affiliates (x) shall not, without Parent’s prior written consent and (y) shall, if Parent requests in writing) take any action or enter into any agreement described in this Section 5.07(b) if taking such action or entering into such agreement would reasonably be required expected, individually or in the aggregate, to have a material and adverse impact on (or permitted without A) the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts sensors business of the Company and the Company Subsidiaries from any personSubsidiaries, provided that taken as a whole (the “Company Sensors Business”), (B) the sensors business of Parent and its affiliates, taken as a whole, but deemed for this purpose to be the same size as the Company Sensors Business or (C) the sensors businesses of Parent and its affiliates, the Company and the Company Subsidiaries may Subsidiaries, taken as a whole, but deemed for this purpose to be so the same size as the Company Sensors Business. Notwithstanding the foregoing, with respect to any Antitrust Laws, Parent and its affiliates shall only be required if such offer, payment to take any actions or concession is conditioned upon the consummation of the Transactions.
enter into any agreements described in this clause (b) Neither if they relate to the Company, any Company Subsidiary or any Parent nor Competing Business. For purposes of this Agreement, “Parent Competing Business” means any business or operations of Parent or any affiliate of Parent that (i) compete with, or have the capability to compete with, the Company shall take or (ii) designs, manufactures, distributes, sells, provides or has any action, including acquiring product or making service that competes with (or has the capability to compete with) or are substitutes for any investment in any person product or any division or assets thereof, service that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide Subsidiary designs, manufactures, distributes, sells, provides or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Lawotherwise has.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliates.
Appears in 1 contract
Samples: Merger Agreement (MTS Systems Corp)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03the terms and conditions of this Agreement, the Parties will reasonably cooperate with each of Parent other and the Company shall use (and Parent shall will cause each of its affiliates totheir respective Subsidiaries to use) use its their respective reasonable best efforts to consummate the Transactions 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 satisfied, in each case satisfied as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to as
(i) promptly obtain the obtaining of all actions or nonactionsnon-actions, consents, Permits (including Environmental Permits)approvals, registrations, waivers, approvalspermits, authorizations authorizations, orders, expirations or terminations of waiting periods and orders other confirmations from any Governmental Entities Authority or other persons necessary Person that are or may become necessary, proper or advisable in connection with the consummation of the TransactionsTransactions contemplated by this Agreement, including the Mergers; (ii) as promptly as practicable the preparation and making of all registrations, filings, forms, notices, petitions, statements, submissions of information, applications and other documents (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make and not withdraw (without the Company’s consent) all registrations and including filings with any Governmental Entity Authorities) that are or other persons necessary may become necessary, proper or 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 or any other Antitrust Law, Mergers; and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend the taking of all lawsuits steps as may be necessary, proper or advisable to obtain an approval from, or to avoid a Legal Proceeding by, any Governmental Authority or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or Person in connection with the consummation of the Transactions, in each case until including the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this AgreementMergers. In no event The Company shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order use commercially reasonable efforts to obtain any the consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon 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, make any other applications and filings as reasonably determined by the Company and Parent under other applicable Antitrust Laws with respect to the Transactions, as promptly as practicable, but in no event later than as required by Law. Parent and the Company shall share equally 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”).
(b) Neither Parent nor In connection with (and without limiting the Company shall take any actionefforts referenced in Section 5.6(a)), including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction each of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: Parties will (i) furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any governmental filings, submissions or other documents; (ii) give the other parties prompt reasonable prior notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such requestfiling, inquiry, investigation, action submission or other Proceedingdocument and, to the extent reasonably practicable, of any communication with or from any Governmental Authority regarding the Transactions, and permit the other to review and discuss in advance, and consider in good faith the views, and secure the participation, of the other in connection with any such filing, submission, document or communication; and (iii) cooperate in responding as promptly inform the as reasonably practicable to any investigation or other parties of any communication to inquiry from a Governmental Authority or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any Legal Proceeding initiated by a Governmental Authority or private party, including informing the other Parties as soon as practicable of any such requestinvestigation, inquiry, investigation inquiry or Legal Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted consulting in connection with andadvance, to the extent practicable, provided the opportunity before making any presentations or submissions to review in advance any documenta Governmental Authority, opinion or proposal made or submitted to any Governmental Entity in connection with such requestor, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filingLegal Proceeding initiated by a private party, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any other Person. In addition, each of the Parties will give reasonable prior notice to and consult with the other in advance of any meeting, conference or substantive communication with any Governmental Entity Authority, or, in connection with any Legal Proceeding by a private party, with any other Person, and to the extent not prohibited by applicable Law or by the applicable Governmental Authority or other Person, and to the extent reasonably practicable, not participate or attend any meeting or conference, or engage in any substantive communication, with any Governmental Authority or such other Person in respect of the Transactions without the other Party (as between Parent and the Company), and in the event either Parent or the Company is prohibited from, or unable to participate, attend or engage in, any such meeting, conference or communication, keep such Party apprised with respect thereto. Each Party shall furnish to the other Parties copies of all filings, submissions, correspondence and communications between it and its Affiliates and their respective representatives, on the one hand, and any Governmental Authority or members of any Governmental Authority’s staff (or any other Person in connection with any Legal Proceeding initiated by a private party), on the other hand, with respect to the Transactions. Notwithstanding anything Each Party may, as it deems advisable and necessary, reasonably designate material provided to the contrary in this Section 5.06, (1) no other party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive as “Outside Counsel Only Material,” and also may reasonably redact the material as necessary to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove personally sensitive information, (B) remove references concerning the valuation of Parent, the Company or any of their respective and its Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share its Subsidiaries conducted in connection with the Company any information that (A) does not relate to approval and adoption of this Agreement and the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliates.negotiations and investigations leading thereto,
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the The Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable, (ii) obtain all actions or nonactions, from any Governmental Entities any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations and or orders from required to be obtained by Parent or the Company or any of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entities or other persons necessary or advisable Entity (including those in connection with the consummation of HSR Act and Title 30: Public Service, Vermont Statutes Annotated), in connection with the Transactionsauthorization, (ii) as promptly as practicable (execution and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date delivery of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisabletransactions contemplated hereby, (iii) cause the satisfaction of all conditions set forth in Article VI, (iv) vigorously defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactionstransactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingorder, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions transactions contemplated hereby and (vi) execute as promptly as practicable, and deliver in any additional instruments event within 60 days after the effective date hereof, make or cause to be made all necessary applications and filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement and the Merger required under or advisable with respect to consummate the Transactions on Company Required Governmental Approvals, the terms HSR Act, Title 30: Public Service, Vermont Statutes Annotated, Section 721 of Title VII of the Defense Production Act of 1950, as amended by the Omnibus Trade and Competitiveness Act of 1988, and any other applicable Law; provided, that the Company and Parent shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required in connection with the consummation of the Merger and seeking any such actions, consents, approvals or waivers or making any such filings. The Company and Parent shall furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. In no event shall Parent, Sub, Neither the Company or nor Parent shall consent to any voluntary delay of the Company Subsidiaries be required (or permitted Closing at the behest of any Governmental Entity without the prior consent of Parent) to makethe other, which consent shall not be unreasonably withheld, delayed or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) conditioned. Neither Parent nor the Company Company, directly or indirectly through one or more of their respective affiliates, shall take any action, including acquiring or making any investment in any person corporation, partnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the TransactionsMerger. In Without limiting the foregoing, Parent agrees to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition or trade regulation Law or any other Law applicable to the Company, any Company Subsidiary or the Merger that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur as promptly as practicable (and in any event, no event shall later than the Extended Outside Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Parent or the Company or any of their respective Subsidiaries or (B) accepting any operational restrictions, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take actions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain or freely operate, any of the assets, properties, licenses, rights, product lines, operations or businesses of Parent, the Company Subsidiaries or any of their respective Subsidiaries, in each case as may be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Effective Time or the Closing, as applicable. Notwithstanding the foregoing or anything in this Agreement to the contrary, Parent shall not be required to, and the Company shall not, in connection with obtaining any consents or approvals hereunder, or in connection with otherwise complying with any provisions of this Agreement, consent to or take any action of the types described above, including proposing or making any divestiture or other undertaking or proposing, accepting or entering into any consent decree, hold separate order or operational restriction, in each case, that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on NNEEC, the Surviving Corporation and the NNEEC Subsidiaries, taken as a whole. For the avoidance of doubt, none of the exclusions set forth in the definition of “Company Material Adverse Effect” shall be deemed to apply to any reference to “material adverse effect” in this Section 5.5(a).
(b) The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain any third party consents (i) necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement or (ii) disclosed in the Company Disclosure Letter or the Parent Disclosure Letter, as applicable; provided, however that the Company and Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Scheduled Contracts in connection with consummation of the Merger and in seeking any such actions, consents, approvals or waivers. In the event that either party shall fail to obtain any third party consent described in this Section 5.5(b), such party shall use its reasonable best efforts, and shall take any such actions reasonably requested by the other party hereto, to minimize any adverse effect upon the Company and Parent, their respective Subsidiaries and their respective businesses resulting, or which could reasonably be expected to result, after the Effective Time, as applicable, from the failure to obtain such consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.5, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the TransactionsMerger or any of the other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the FTCFederal Trade Commission, the Antitrust Division Department of Justice, the FERC, the FCC, the NRC, the VPSB, CFIUS or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) Without limiting the Transactions. Notwithstanding generality of anything to the contrary contained in this Section 5.065.5, Parent shall comply with, or shall enter into an agreement or arrangement with the Vermont Department of Public Service that is deemed by the VPSB to comply with or satisfy, the terms and conditions of the Order of the VPSB in Docket No. 6120 and 6460 entered June 26, 2001 (1the “Sharing Order”) no party hereto shall be with regard to sharing with ratepayers and shareholders of the Company any premium above book value derived from the transactions contemplated by this Agreement, up to a maximum sharing of $16 million, as adjusted for inflation.
(e) Nothing contained in violation of this Agreement by virtue shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of providing information that is competitively sensitive the Company prior to one another on an “outside counsel only” or other basis designed the Effective Time. Prior to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of ParentEffective Time, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share exercise, consistent with the Company any information that (A) does not relate to the Company or the Company Subsidiariesterms and conditions of this Agreement, (B) reveals Parent’s (or complete unilateral control and supervision over its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesbusiness operations.
Appears in 1 contract
Samples: Merger Agreement (Central Vermont Public Service Corp)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the The Company shall (and Parent shall cause each of its affiliates to) use its commercially reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) take, or cause to be taken, all appropriate action (including obtaining all funds necessary to consummate the Transactions on the terms contemplated by this Agreement) and do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective, the Merger and the other Transactions, including transactions under the Voting Agreements, as promptly as practicable, (ii) obtain all actions or nonactions, from any Governmental Entities any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations and or orders from required to be obtained by Parent or the Company or any of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entities or other persons necessary or advisable Entity, in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, (iiiii) as promptly as practicable (and (A) subject to cause the satisfaction of all conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreementin Article 6, (Biv) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) vigorously defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingorder, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order with respect theretoorder, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute as promptly as practicable, and deliver in any additional instruments event within sixty (60) days after the date hereof, make or cause to be made all necessary or advisable applications and filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company Agreement and the Company Subsidiaries from Merger required under any personother applicable Law; provided, provided that the Company and the Company Subsidiaries may be so Parent shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required if such offer, payment or concession is conditioned upon in connection with the consummation of the Merger and seeking any such actions, consents, approvals or waivers or making any such filings. The Company and Parent shall furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the Transactions.
(b) Neither . No party to this Agreement shall consent to any voluntary delay of the Closing at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld, delayed or conditioned. Parent nor shall not, except as may be consented to in writing by the Company shall Company, directly or indirectly through one or more of its affiliates, take any action, including acquiring or making any investment in any person corporation, partnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI 6 or the consummation of the TransactionsMerger. In Without limiting this Section 5.7(a), Parent agrees to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition, or trade regulation Law or any other Law applicable to the Company, any Company Subsidiary or the Merger that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur as promptly as practicable (and in any event, no event shall later than the Extended Outside Date (as defined below)), including (A) proposing, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Parent or the Company or any of their respective Subsidiaries or (B) accepting any operational restrictions, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take actions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain or freely operate, any of the assets, properties, licenses, rights, product lines, operations or businesses of Parent, the Company Subsidiaries or any of their respective Subsidiaries, in each case as may be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Effective Time or the Closing, as applicable;
(b) The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, commercially reasonable efforts to obtain any third party consents (i) necessary, proper or advisable to consummate the Merger and the other Transactions, including transactions under the Voting Agreements, or (ii) disclosed in the Company Disclosure Schedule; provided, however that the Company and Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the Merger and in seeking any such actions, consents, approvals or waivers. In the event that either party shall fail to obtain any third party consent described in this Section 5.7(b), such party shall use commercially 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, as applicable, from the failure to obtain such consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.7, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other Transactions, including transactions under the Voting Agreements; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the FTCFederal Trade Commission, the Antitrust Division Department of Justice or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger, or any of the other Transactions, including transactions under the Voting Agreements. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the Transactions. Notwithstanding anything right to control or direct the operations of the Company prior to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive Effective Time. Prior to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of ParentEffective Time, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share exercise, consistent with the Company any information that (A) does not relate to the Company or the Company Subsidiariesterms and conditions of this Agreement, (B) reveals Parent’s (or complete unilateral control and supervision over its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesbusiness operations.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI and Annex II to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor Guarantors and each of its and their applicable affiliates 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 or nonactions, consentsconsents (including Required Consents), Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter in any event within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement)hereof, make and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or advisable in connection with the consummation of the Transactions, including the filings required of the parties hereto or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingproceeding, (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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions Transactions, and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions.
(b) In furtherance of the obligations set forth in Section 5.05(a), (i) Parent shall promptly take (and shall cause each of its affiliates to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions, and obtain all approvals and consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions on as promptly as practicable; provided that such actions shall only be deemed to require accepting operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the terms contemplated by this Agreement. In no event shall sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company Company, the Surviving Corporation or any of their respective affiliates (and the Company Subsidiaries entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required (to obtain such approvals or permitted without consents of such Governmental Entities or to avoid the prior consent of Parent) to makeentry of, or to offer effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or Table of Contents materially delaying the consummation of the Transactions (such actions, “Antitrust Divestitures”) if such Antitrust Divestitures would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Coriant, or a Company Material Adverse Effect, immediately after giving effect to the Merger, and (ii) the Company may make, subject to the condition that the Transactions actually occur, any payments undertakings (including undertakings to any third parties accept operational restrictions or concede, limitations or offer to concede, anything of value, in each case, in order to obtain any consent, approval make sales or authorization under contracts of the Company and the Company Subsidiaries from any personother dispositions, provided that the Company and the Company Subsidiaries may be so required if such offerrestrictions, payment limitations, sales or concession is other dispositions are conditioned upon the consummation of the Transactions.
(b) as are required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions. Neither Parent nor the Company Sub, directly or indirectly, through one or more of their respective affiliates, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or Annex II or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary In addition, except as may be prohibited by any Governmental Entity or by any Law, in this Section 5.06connection with any such request, (1) no inquiry, investigation, action or legal proceeding, each party hereto shall will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in violation of this Agreement by virtue of providing information that is competitively sensitive connection with any document, opinion or proposal made or submitted to one another on an “outside counsel only” any Governmental Entity in connection with such request, inquiry, investigation, action or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliateslegal proceeding.
Appears in 1 contract
Samples: Merger Agreement (Tellabs Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable ’s affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) promptly seek to obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, in any event with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter HSR Act within seven (7) five Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of which Parent notifies the Company Disclosure Letter within ten in writing that such filings are required, which notification must be made (10if at all) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letternot later than June 30, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement)2016, make and not withdraw (without the consent of both Parent and the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (viiv) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on Transactions.
(b) At the terms contemplated by this Agreement. In no event shall request of Parent, Sub, the Company shall agree to divest, sell, dispose of, hold separate or otherwise take or commit to take any other action with respect to any of the Company Subsidiaries be required (businesses, product lines or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts assets of the Company and the Company Subsidiaries from any personSubsidiaries, provided that the Company and the Company Subsidiaries may be so required if any such offer, payment or concession action is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawMerger.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigationinvestigation or legal Proceeding; (iii) respond as promptly as practicable to (x) any inquiries or requests received from the FTC or the Antitrust Division for additional information or documentation and (y) any inquiries or requests received from any state attorney general, action foreign antitrust or competition authority or other Proceeding; Governmental Entity in connection with antitrust or related matters, and (iiiiv) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding.
(d) Notwithstanding anything to the contrary contained in this Section 5.065.06 or elsewhere in this Agreement, (1) no party hereto neither Parent nor Sub shall be in violation of have any obligation under this Agreement by virtue to take any of providing information the following actions, if Parent determines in good faith that is competitively sensitive taking such actions could reasonably be expected to one another on an “outside counsel only” materially affect the business or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation interests of Parent, any of Parent’s Subsidiaries or the Surviving Corporation in any adverse way: (i) to dispose of or transfer or cause any of its Subsidiaries to dispose of or transfer any assets, or to commit to cause the Company to dispose of or transfer any assets; (ii) to discontinue or cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause the Company to discontinue offering any product or service; (iii) to license or otherwise make available, or cause any of its Subsidiaries to license or otherwise make available to any person any technology, software or other Intellectual Property or Intellectual Property Right, or to commit to cause the Company to license or otherwise make available to any person any technology, software or other Intellectual Property or Intellectual Property Right; (iv) to hold separate or cause any of its Subsidiaries to hold separate any assets or operations (either before or after the Effective Time), or to commit to cause the Company to hold separate any assets or operations; (v) to make or cause any of its Subsidiaries to make any commitment, or to commit to cause the Company to make any commitment (to any Governmental Entity or otherwise) regarding its future operations or the future operations of the Company; or (vi) to contest any Proceeding or any order, writ, injunction or decree relating to the Merger or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesother Transactions.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) 6.6.1 The parties hereto will use its their respective reasonable best efforts to consummate and make effective the Transactions and to cause the conditions to the Closing set forth in Article VI VII to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to including (i) promptly obtain the obtaining of all necessary actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations consents and orders approvals from Governmental Entities Authorities or other persons Persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) making of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make and not withdraw (without the Company’s consent) all necessary registrations and filings (including filings with Governmental Authorities if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid an Action by, any Governmental Entity Authority or other persons Persons necessary or advisable in connection with the consummation of the Transactions, including ; and (ii) the filings required defending of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legalActions, regulatorywhether judicial or administrative, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactionstransactions performed or consummated by such party in accordance with the terms of this Agreement, including the Exchange, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed.
6.6.2 Each of the parties hereto shall promptly (in each case until no event later than twenty (20) Business Days following the issuance of a finaldate that this Agreement is executed) make its respective filings, non-appealable order and thereafter make any other required submissions under the HSR Act with respect to each such lawsuit or 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 each case until .
6.6.3 LMC and Parent shall cooperate to prepare such applications as may be necessary for submission to the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, FCC in order to obtain any consentthe FCC Consent (the "FCC Applications"). LMC and Parent shall promptly (in no event later than twenty (20) Business Days following the date that this Agreement is executed) file the FCC Applications with the FCC, approval or authorization under contracts of the Company and the Company parties shall diligently take, or cooperate in the taking of, all necessary, desirable and proper actions, and provide any additional information, reasonably required or requested by the FCC. Each of LMC and Parent agrees not to, and shall not permit any of its respective 47 Subsidiaries from any personto, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, action that would reasonably be expected to prevent or cause a material materially delay in the satisfaction or impede receipt of the conditions contained FCC Consent.
6.6.4 Each of LMC and Parent shall give (or shall cause its respective Subsidiaries to give) any notices to third parties, and each of LMC and Parent shall use, and cause each of its Subsidiaries to use, its reasonable best efforts to obtain any third party consents not covered by Sections 6.6.1, 6.6.2 and 6.6.3 above, necessary, proper or advisable to consummate Transactions. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may request in Article VI connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, submissions, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate.
6.6.5 If any objections are asserted with respect to the Transactions under any Antitrust Law or any Communications Regulation or if any suit is instituted by any Governmental Authority or any private party challenging any of the Transactions as violative of any Antitrust Law or Communications Regulation, the parties shall use their reasonable best efforts to resolve any such objections or challenge as such Governmental Authority or private party may have to such transactions under such law so as to permit consummation of the Transactions. In no event shall the Company or any furtherance of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization parties' obligations under Law.
(c) Without limiting the generality of anything contained in this Section 5.066.6, each party hereto shall: LMC and Parent shall be required to (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to required by any Governmental Entity in connection Authority, shall cause their respective current and future Subsidiaries to), propose, negotiate, commit to and enter into one or more settlements, undertakings, conditions, consent decrees, stipulations and other agreements with such requestor to one or more Governmental Authorities (each, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity a "Settlement") in connection with the Transactions. Notwithstanding anything Transactions (including obtaining the requisite consent of such Governmental Authorities), including one or more Settlements that require LMC or Parent to restructure the contrary in this Section 5.06operations of, or sell or otherwise divest or dispose of, its assets and/or the assets of its current and future Subsidiaries; provided, however, that (1i) no party hereto neither LMC nor any of its Subsidiaries shall be in violation required to take (or commit to take) any of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act foregoing actions, or any other Antitrust Law) or redacted action contemplated by this Section 6.6, (A) if any such actions would reasonably be expected to remove references concerning have a material adverse effect on the valuation business or operations of Parent, the Company LMC and its Subsidiaries or any of their respective Subsidiaries cable, television (including video or electronic home shopping) or satellite businesses, or (B) as necessary if the Board of Directors of LMC determines, in good faith, that the taking of such actions would be reasonably likely to address privilege concerns and have a Material Adverse Effect on Splitco (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiarieswithout giving effect, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information for purposes of Parent or any of its affiliates.this Section
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, each of Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and Parent shall cause each of the Company Subsidiaries its affiliates to) use its reasonable best efforts to (i) promptly obtain all actions or nonactionsnon-actions, consents, Permits licenses, permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactionstransactions contemplated hereby, including the Company Required Governmental Approvals and Parent Required Governmental Approvals, (ii) as promptly as practicable practicable, and in any event within fifteen (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (715) Business Days after the date of this Agreementhereof, (B) with respect to make the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or advisable in connection with the consummation of the Transactions, including the filings required of the parties them or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisableAct, (iii) as promptly as practicable, make all registrations and filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with any other Governmental Entity or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, (iv) defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactionstransactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingproceeding, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactionstransactions contemplated hereby, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on transactions contemplated hereby.
(b) In furtherance of the terms obligations set forth in Section 5.06(a), (i) Parent agrees to use its reasonable best efforts to take (and to cause its affiliates to take) promptly any and all steps or promptly make any and all undertakings necessary to obtain the Company Required Governmental Approvals and the Parent Required Governmental Approvals, so as to enable the parties to close the transactions contemplated by this Agreement. In no event shall ParentAgreement as promptly as practicable (including accepting operational restrictions or limitations and committing to or effecting the sale, Sublicense, disposition or holding separate of such assets or businesses as are required (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity)) and (ii) the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) shall use its reasonable best efforts to make, or subject to offer to makethe condition that the transactions contemplated herein actually occur, any payments undertakings (including undertakings to make sales or other dispositions, provided that such sales or other dispositions are conditioned upon the closing of the transactions contemplated hereby) as are required in order to obtain the Company Required Governmental Approvals and the Parent Required Governmental Approvals. Notwithstanding the obligations set forth in this Section 5.06(b), Parent shall not be required to, and the Company shall not, in connection with obtaining any third parties the Company Required Governmental Approvals and the Parent Required Governmental Approvals, consent to or concedetake any action of the types described above, including accepting or offer to concedeentering into any operational restriction, anything of valueconsent decree or hold separate order or making any divestiture or other undertaking, in each case, that, individually or in order the aggregate, would reasonably be expected to obtain any consent(A) have a material adverse effect on the business, approval assets, liabilities, financial condition or authorization under contracts results of operations of the Company and the Company Subsidiaries from any personSubsidiaries, taken as a whole, or (B) have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger and the terms and conditions of the Company Required Governmental Approvals and the Parent Required Governmental Approvals (provided that for the purpose of determining whether a potential adverse effect on Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger and the terms and conditions of the Company Required Governmental Approvals and the Parent Required Governmental Approvals would constitute a material adverse effect for the purposes of this Section 5.06(b)(B), Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger, shall be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size and scale of the Company and the Company Subsidiaries may be so required if such offerits Subsidiaries, payment or concession is conditioned upon the consummation taken as a whole) (each of the Transactions.
effects described in clauses (bA) and (B) of this sentence being referred to herein as a “Burdensome Effect”). Neither Parent nor the Company Sub, directly or indirectly through one or more of their respective affiliates, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawMerger.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of any material communication from any Governmental Entity in connection with the transactions contemplated by this Agreement and of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the Transactionstransactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the Antitrust Division, the FTC, the Antitrust Division FERC, the PUCN or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) The Company agrees to use its reasonable best efforts to take (and to cause the Transactions. Notwithstanding anything Company Subsidiaries to take) (which shall not include the expenditure of funds), at Parent’s sole cost and expense, such actions as Parent shall reasonably request to obtain consents, waivers, or approvals under Material Contracts with respect to the contrary in Transactions contemplated by this Section 5.06Agreement; provided, however, that (1i) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub each Company Subsidiary shall not be required to share with incur any Indebtedness pursuant to this Section 5.06(d) and (ii) the Company any information that (A) does not relate and each Company Subsidiary shall only be required to enter into an obligation or commitment if such obligation or commitment is conditioned upon the Company or closing of the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy transactions contemplated by this Agreement and will be effective with respect to the Transactions Company and the Company Subsidiaries only on or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesafter the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Midamerican Energy Holdings Co /New/)
Appropriate Action; Consents; Filings. (a) Subject Parent shall (and shall cause Sub and each of its and their applicable Subsidiaries and affiliates (which, in the case of Parent, for the avoidance of doubt, shall include the Guarantors and the Equity Financing Sources) to) and, subject to Section 5.035.03 and this Section 5.06, each of Parent and the Company shall (and Parent shall cause each of its affiliates the Company Subsidiaries to) ), use its respective reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article ARTICLE VI to be satisfied, satisfied in each case as promptly as practicableaccordance with the terms hereof. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor Sub and each of its and their applicable affiliates Subsidiaries, affiliates, officers and directors to) and, subject to Section 5.03 and this Section 5.06, the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) promptly obtain all material actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or or, other than with respect to Investment Screening Laws, advisable in connection with the consummation of the Transactions, including the Contract consents set forth on Section 5.06(a)(i) of the Company Disclosure Letter, (ii) as promptly as practicable (and in any event within five (5) Business Days) after the date of this Agreement with respect to the HSR Act filings described in clause (A) subject below, as soon as reasonably practicable (and in any event within fifteen (15) Business Days) with respect to the conditions FCC applications described in clause (D) below and as soon as reasonably practicable (and in any event within twenty-five (25) Business Days) after the date of this Agreement (other than with respect to the filing set forth on Section 5.06(a5.06(a)(ii) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days which shall be submitted as soon as reasonably practicable after the date of this Agreement, (Bif required) with respect to the filings required remaining filings, notifications and applications (inclusive of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(bdrafts, where appropriate) of the Company Disclosure Letter within ten described in clause (10) Business Days after the date of this Agreement and A), clause (B), clause (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty and clause (20) Business Days after the date of this AgreementD), make and not withdraw (without the Company’s consent) all registrations registrations, filings and filings applications with any Governmental Entity or other persons necessary or or, other than with respect to Investment Screening Laws, advisable as required by Law in connection with the consummation of the Transactions, including (A) the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under the HSR Act or any other Antitrust Law, (B) the filings required by the parties hereto under the Investment Screening Laws set forth on Section 6.01(b)(ii)(B) of the Company Disclosure Letter (labeled as “Non-Contingent”) (and for this purpose the parties shall be deemed to have made any required filings upon first providing any filing, pre-filing, notification, pre-notification or draft of such (including where it is customary to provide a draft prior to formal filing or notification) to the relevant Governmental Entity notwithstanding any refusal by the Governmental Entity to accept such without amendment or any further formal filings or notifications required), (C) a notification of pending changed conditions, including pending change of ownership pursuant to the requirements of the NISPOM, to the DCSA, and any other notifications, notices or filings required in connection with the Required Statutory Approvals and (D) applications to the FCC for consent to transfer control of, assign or cancel the Company Permits issued under the Communications Laws, (iii) promptly make any further filings pursuant thereto to or in connection with the filings, registrations and applications described in clause (ii) that may be necessary or, other than with respect to Investment Screening Laws, advisable (provided that filings under the Investment Screening Laws set forth on Section 6.01(b)(ii)(B) of the Company Disclosure Letter (labeled as “Contingent”) shall be filed within ten (10) Business Days if the parties hereto, acting reasonably, agree that such filing is required in accordance with the terms set forth in Section 6.01(b)(ii)(B) of the Company Disclosure Letter (and for this purpose the parties shall be deemed to have made any required filings upon first providing any filing, pre-filing, notification, pre-notification or advisabledraft of such (including where it is customary to provide a draft prior to formal filing or notification) to the relevant Governmental Entity notwithstanding any refusal by the Governmental Entity to accept such without amendment or any further formal filings or notifications required)), (iiiiv) contest and defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order Order with respect to each such lawsuit or other Proceeding, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order Order with respect thereto, (vvi) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions Transactions, and (vivii) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on Transactions.
(b) In furtherance of the terms contemplated by obligations set forth in Section 5.06(a) and notwithstanding any limitations therein or elsewhere in this Agreement. In no event , (i) Parent shall promptly take (and shall cause Sub and each of its and their applicable Subsidiaries to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and obtain all approvals and consents, including approvals and consents under any Antitrust Laws or Investment Screening Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as practicable, including operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company Company, the Surviving Corporation or any of their respective Subsidiaries (and the Company Subsidiaries entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required (or permitted without advisable to obtain such approvals or consents of such Governmental Entities or to avoid the prior consent of Parent) to makeentry of, or to offer to makeeffect the dissolution of or vacate or lift, any payments to any third parties Orders that would otherwise have the effect of preventing or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts materially delaying the consummation of the Company and the Company Subsidiaries from any person, Transactions; provided that the Company consummation of such restrictions, limitations, hold separate orders, sales, licenses or other dispositions are conditioned upon the consummation of the Transactions; and (ii) the Company Subsidiaries may be so required if make, subject to (A) prior written consent of Parent and (B) the condition that the Transactions actually occur, any undertakings (including undertakings to accept operational restrictions or limitations or to make sales or other dispositions; provided that such offerrestrictions, payment limitations, sales or concession is other dispositions are conditioned upon the consummation of the Transactions) as are required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions.
(bc) Neither Subject to the matters set forth in Section 5.06(c) of the Parent Disclosure Letter, none of the Company, Parent nor Sub, directly or indirectly, through one or more of their respective affiliates or otherwise, shall, following the Company shall take date hereof, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise making any actioninvestment in, including acquiring or making by any other manner, any person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any person assets, or agree to any division commercial or assets thereofstrategic relationship with any person, that if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, consolidation, investment or commercial or strategic relationship would reasonably be expected to prevent or cause a material materially delay in the Merger or satisfaction of the conditions contained set forth in Article VI Section 6.01 or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawSection 6.03.
(cd) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: shall (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or to be submitted to any Governmental Entity in connection with the Transactions. Subject to the rights and obligations of Parent and the rights and obligations of the Company elsewhere in this Agreement, Parent shall control the strategy for obtaining all consents, approvals or waivers necessary to satisfy the conditions set forth in Section 6.01(b), including by directing the timing, nature and substance of any filings, forms, statements, commitments, submissions and communications in connection therewith, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, such consents, approvals or waivers. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or Proceeding, each party hereto will permit authorized Representatives of the other parties, to the extent permitted by the applicable Governmental Entity, to be present at each meeting or conference relating to such request, inquiry, investigation, action or Proceeding and to have access to and be consulted in connection with, and to the extent reasonably practicable, provided the opportunity to review in advance, any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law or any Investment Screening Law).
(e) or redacted (A) to remove references concerning the valuation of ParentIf required by applicable Law, the Company or any of their respective Subsidiaries or and Parent will (Bi) as necessary promptly as practicable following the Effective Time (and in any event within five (5) calendar days following the Effective Time), prepare and file with the United States Department of State Directorate of Defense Trade Controls (“DDTC”) any notifications pursuant to address privilege concerns 22 C.F.R. § 122.4(a) and (2ii) Parent as promptly as practicable after the Effective Time (and Sub shall not be in any event within fifteen (15) Business Days after the Effective Time), file with DDTC all required notifications pursuant to share with the Company any information that 22 C.F.R. § 122.4(c).
(Af) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of If Parent or any of its affiliates, directly or indirectly, enters into a definitive agreement with respect to the matter set forth on Section 5.06(c) of the Parent Disclosure Letter and, in connection therewith, Parent or such affiliate receives a request for additional information and documentary material pursuant to the HSR Act in connection with such matter, the Company shall, to the extent reasonably requested by Parent, use commercially reasonable efforts to make available information and personnel in connection with such request; provided that (i) notwithstanding the foregoing, in no event shall a breach of this Section 5.06(f) constitute a breach for purposes of determining the satisfaction of the condition in Section 6.02(b) and (ii) the matter set forth on Section 5.06(c) of the Parent Disclosure Letter shall not be considered a “Transaction” pursuant to this Agreement for purposes of this Agreement.
(g) This Section 5.06 does not govern the obligations of Parent and Sub to obtain the Financing (which are instead governed by Section 5.07).
Appears in 1 contract
Samples: Merger Agreement (Cubic Corp /De/)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03the terms and conditions of this Agreement, the Parties will reasonably cooperate with each of Parent other and the Company shall use (and Parent shall will cause each of its affiliates totheir respective Subsidiaries to use) use its their respective reasonable best efforts to consummate the Transactions 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 satisfied, in each case satisfied as promptly as practicable. Without limiting reasonably practicable prior to the generality of the foregoingOutside Date, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its including using reasonable best efforts to accomplish the following as promptly as reasonably practicable prior to the Outside Date: (i) promptly obtain the obtaining of all actions or nonactionsnon-actions, consents, Permits (including Environmental Permits)approvals, registrations, waivers, approvalspermits, authorizations authorizations, orders, expirations or terminations of waiting periods and orders other confirmations from any Governmental Entities Authority or other persons necessary Person that are or may become necessary, proper or advisable in connection with the consummation of the TransactionsTransactions contemplated by this Agreement, including the Mergers (the “Regulatory Approvals”); (ii) as promptly as practicable the preparation and making of all registrations, filings, forms, notices, petitions, statements, submissions of information, applications and other documents (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make and not withdraw (without the Company’s consent) all registrations and including filings with any Governmental Entity Authorities) that are or other persons necessary may become necessary, proper or 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 or any other Antitrust Law, Mergers; and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend the taking of all lawsuits steps as may be necessary, proper or advisable to obtain an approval from, or to avoid a Legal Proceeding by, any Governmental Authority or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or Person in connection with the consummation of the Transactions, in each case until including the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this AgreementMergers. In no event The Company shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order use commercially reasonable efforts to obtain any the consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon 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 date of this Agreement, make its respective filings under the HSR Act, and make any other applications and filings as reasonably determined by the Company and Parent under other applicable Antitrust 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”).
(b) Neither In connection with (and without limiting the efforts referenced in Section 5.6(a)), each of the Parties will (i) furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any governmental filings, submissions or other documents; (ii) give the other reasonable prior notice of any such filing, submission or other document and, to the extent reasonably practicable, of any communication with or from any Governmental Authority regarding the Transactions, and permit the other to review and discuss in advance, and consider in good faith the views, and secure the participation, of the other in connection with any such filing, submission, document or communication; and (iii) cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental Authority or in connection with any Legal Proceeding initiated by a Governmental Authority or private party, including informing the other Parties as soon as practicable of any such investigation, inquiry or Legal Proceeding, and consulting in advance, to the extent practicable, before making any presentations or submissions to a Governmental Authority, or, in connection with any Legal Proceeding initiated by a private party, to any other Person. In addition, each of the Parties will give reasonable prior notice to and consult with the other in advance of any meeting, conference or substantive communication with any Governmental Authority, or, in connection with any Legal Proceeding by a private party, with any other Person, and to the extent not prohibited by applicable Law or by the applicable Governmental Authority or other Person, and to the extent reasonably practicable, not participate or attend any meeting or conference, or engage in any substantive communication, with any Governmental Authority or such other Person in respect of the Transactions without the other Party (as between Parent nor and the Company), and in the event either Parent or the Company is prohibited from, or unable to participate, attend or engage in, any such meeting, conference or communication, keep such Party apprised with respect thereto. Each Party shall take furnish to the other Parties copies of all filings, submissions, correspondence and communications between it and its Affiliates and their respective representatives, on the one hand, and any action, including acquiring Governmental Authority or making members of any investment in any person Governmental Authority’s staff (or any division or assets thereofother Person in connection with any Legal Proceeding initiated by a private party), that would reasonably be expected on the other hand, with respect to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall Each Party may, as it deems advisable and necessary, reasonably designate material provided to the Company or any other party as “Outside Counsel Only Material,” and also may reasonably redact the material as necessary to (A) remove personally sensitive information, (B) remove references concerning the valuation of the Company and its Subsidiaries be permitted or Parent and its Subsidiaries conducted in connection with the approval and adoption of this Agreement and the negotiations and investigations leading thereto, (without C) comply with contractual arrangements, (D) prevent the prior consent loss of Parenta legal privilege or (E) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under comply with applicable Law.
(c) Without limiting the generality of anything contained in this Section 5.06, The Parties shall consult with each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to obtaining all permits and consents necessary to consummate the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust LawMergers.
(d) or redacted (A) to remove references concerning the valuation of ParentNeither Parent nor either Merger Sub shall, the Company or any of nor shall they permit their respective Subsidiaries or Affiliates to, acquire or agree to acquire any rights, interests, assets, business, Person or division thereof that is developing a blood-based multi-cancer screening test (Bthrough acquisition, license, joint venture, collaboration or otherwise), if such acquisition would constitute a material acquisition required to be reported via Item 2.01 of Form 8-K.
(e) as necessary Notwithstanding anything in this Agreement to address privilege concerns the contrary and (2) Parent and Sub for the avoidance of doubt, the Representative shall not be required to share with the Company have any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesobligations under this Section 5.6.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject The Parent Entities and, subject to Section 5.035.8, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its respective reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Ancillary Agreements as promptly as practicable, (ii) obtain all actions or nonactions, from any Governmental Entities any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations and or orders from Governmental required to be obtained by the Parent Entities or other persons necessary the Company or advisable any of their respective Affiliates, or to avoid any action or proceeding by any Governmental Entity (including, those in connection with the consummation of HSR Act), in connection with the Transactionsauthorization, (ii) as promptly as practicable (execution and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date delivery of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make EDS APA and not withdraw (without the Company’s consent) all registrations and filings with any Governmental Entity or other persons necessary or 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 or any other Antitrust Law, transactions contemplated hereby and promptly make any further filings pursuant thereto that may be necessary or advisablethereby, (iii) cause the satisfaction of all conditions set forth in Article VI, (iv) without limiting Section 5.6, vigorously defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the EDS APA or the consummation of the Transactionstransactions contemplated hereby or thereby, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingorder, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties Parties to consummate the Transactionstransactions contemplated by this Agreement or the EDS APA, in each case until the issuance of a final, non-appealable order with respect theretoorder, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute as promptly as practicable, and deliver in any additional instruments event within five (5) Business Days after the date hereof, make or cause to be made all necessary or advisable applications and filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company Agreement and the Company Subsidiaries from any personMerger required under the HSR Act; provided, provided that the Company and the Company Subsidiaries may be so Parent Entities shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required if such offer, payment or concession is conditioned upon in connection with the consummation of the Transactions.
Merger and seeking any such actions, consents, approvals or waivers or making any such filings; and provided, further, that this Section 5.9 shall not apply to the Company’s obligations with respect to the Stockholder Meeting or Proxy Statement, which shall instead by governed by Section 5.5. The Company and the Parent Entities shall furnish to each other all information required for any application or other filing under any applicable Law (b) Neither Parent nor including filings made by, or required to be made by, the Company with the SEC other than the Proxy Statement) in connection with the transactions contemplated by this Agreement or the EDS APA. Each of the Parties shall use reasonable best efforts to substantially comply with any “second request” for additional information or documentary material from the Department of Justice or the Federal Trade Commission pursuant to the HSR Act (a “Second Request”) no later than six (6) months after receipt of such second request and to produce documents on a rolling basis. Neither the Company nor any Company Subsidiary shall consent to any voluntary delay of the Closing at the behest of any Governmental Entity without the prior written consent of Ultimate Parent. Subject to the terms and conditions of this Agreement, none of the Parties shall or shall cause their respective controlled Affiliates to, directly or indirectly, take any action, including acquiring or making any investment in any person corporation, partnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to prevent prevent, impair or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the TransactionsMerger. Without limiting this Section 5.9(a), the Parent Entities and Merger Sub agree to take, and to cause to be taken (including by causing their respective controlled Affiliates to take), and, if (and only if) requested by Ultimate Parent in writing, the Company and the Company Subsidiaries shall agree to take and/or to cause to be taken, any and all steps and to make, and to cause to be made (including by causing their respective controlled Affiliates to make), any and all undertakings necessary to avoid or eliminate each and every impediment under any Antitrust Law or to the Parent Entities, the Company, any Company Subsidiary or any of their respective controlled Affiliates that may be asserted by any Governmental Entity under any Antitrust Laws with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur no later than the Initial End Date (or, if the Initial End Date is extended pursuant to Section 7.1(b)(i), the Final End Date) (“Undertakings”), including (x) proposing, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of the Parent Entities, the Company, any Company Subsidiary, the Surviving Corporation or any of their respective controlled Affiliates or (y) accepting any operational restrictions, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take actions that limit any of the Parent Entities’, the Company’s, any Company Subsidiary’s, the Surviving Corporation’s or any of their respective controlled Affiliates’ freedom of action with respect to, or its ability to retain or freely operate, any of the assets, properties, licenses, rights, product lines, operations or businesses of the Parent Entities, the Company, any Company Subsidiary, the Surviving Corporation or any of their respective controlled Affiliates, in each case as may be required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Effective Time or the Closing, as applicable, beyond the Initial End Date (or, if the Initial End Date is extended pursuant to Section 7.1(b)(i), the Final End Date); provided, however, that, notwithstanding anything to the contrary in this Agreement, the Parent Entities and their respective controlled Affiliates shall not be required to take or consent to (and neither the Company nor the Company Subsidiaries shall agree to unless requested in writing by Ultimate Parent) the taking of any such action that, individually or in the aggregate, would reasonably be likely to result in a material adverse effect on the Company, the Company Subsidiaries, the Parent Entities and their respective Subsidiaries, taken as a whole after giving effect to the reasonably anticipated economic benefits of the Merger (an “Antitrust Material Adverse Effect”). For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, none of the Parent Entities, the Company or any of the Company Subsidiaries or any of their respective controlled Affiliates shall be required to effect or agree to any Undertakings unless such Undertakings are conditioned upon (and subject to) the consummation of the Merger.
(b) The Company and Ultimate Parent shall give (or shall cause their respective Affiliates to give) any notices to third parties, and use, and cause their respective Affiliates to use, their reasonable best efforts to obtain any third party consents (i) necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement and the EDS APA or (ii) disclosed in the Company Disclosure Schedule; provided, however that the Company and Ultimate Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the Merger and in seeking any such actions, consents, approvals or waivers. In the event that either Party shall fail to obtain any third party consent described in this Section 5.9(b), such Party shall use its commercially reasonable efforts, and shall take any such actions reasonably requested by the other Party, to minimize any adverse effect upon the Company and Ultimate Parent, their respective Affiliates, and their respective businesses resulting, or which could reasonably be expected to result, after the Effective Time, as applicable, from the failure to obtain such consent. Notwithstanding anything to the contrary contained in this Section 5.9(b), in no event shall the Company or any of the Company Subsidiaries pay, commit to pay or be permitted (without the prior consent of Parent) required to provide pay any amounts, fees, penalties or concede, other consideration or offer agree to provide or concede, anything of value any other material concessions in order to obtain any consentthird party consents contemplated by this Section 5.9(b) without the prior written consent of Ultimate Parent (such consent not to be unreasonably withheld, approval delayed or authorization under Lawconditioned), except that the Company shall be required to pay amounts for the foregoing purposes to the extent that the Parent Entities provide to the Company or its applicable Subsidiary in advance (by wire transfer of immediately available funds) the necessary funds for such excess amounts and it is acknowledged and agreed that except for any consents expressly contemplated by Section 6.1, no receipt of any consents shall be a condition or requirement to the consummation of the Merger or the Closing.
(c) Without limiting the generality of anything contained in this Section 5.065.9, each party hereto shall: Party shall (i) give the other parties Parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the Transactions; Merger or any of the other transactions contemplated by this Agreement or the EDS APA, (ii) keep the other parties Parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; legal proceeding, and (iii) promptly inform the other parties Parties of any communication to or from the FTCFederal Trade Commission, the Antitrust Division Department of Justice or any other Governmental Entity regarding the TransactionsMerger and the other transactions contemplated hereby. Each Party will consult and cooperate with the other Parties and will consider in good faith the views of the other Parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation investigation, action or Proceedinglegal proceeding, each party hereto Party will permit authorized representatives Representatives of the other parties Parties to be present at each meeting or conference relating to such request, inquiry, investigation investigation, action or Proceeding legal proceeding and to have access to, to and be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation investigation, action or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. legal proceeding.
(d) Notwithstanding anything in this Agreement to the contrary but subject to Ultimate Parent’s obligations in this Section 5.06respect of the Undertakings, Ultimate Parent shall have the unilateral right to control the review of the transaction under the Antitrust Laws; provided, that, for the avoidance of doubt, (1i) no party hereto shall be in violation of this Agreement by virtue of providing information from the date hereof until the date that is competitively sensitive seven (7) months after the date of any Second Request, Ultimate Parent and the Company shall mutually agree (in each case, not to one another on an “outside counsel only” be unreasonably withheld, conditioned or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (Adelayed) to determine whether or not the Parties will litigate with any Governmental Entities to oppose any enforcement action or remove references concerning any court or regulatory orders impeding the valuation ability to consummate the Merger and (ii) after the date that is seven (7) months after the date of any Second Request, Ultimate Parent shall determine whether or not the Parties will litigate with any Governmental Entities but only in a case to oppose any enforcement action or remove any court or regulatory orders impeding the ability to consummate the Merger. Without the prior written consent of Ultimate Parent, neither the Company nor any of the Company Subsidiaries shall effect any Undertaking.
(e) From and after the date hereof, the Company shall use commercially reasonable efforts to provide or any cause to be provided to Ultimate Parent all assistance reasonably requested by Ultimate Parent in the preparation for the consummation of their respective Subsidiaries the transactions contemplated by the EDS APA, including the use of commercially reasonable efforts (i) to provide such information, financial or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiariesotherwise, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions Eastern Division as Ultimate Parent may reasonably request, (ii) to assist in the preparation of disclosure schedules, exhibits and ancillary agreements contemplated in the EDS APA, (iii) to assist in transition planning with respect to the EDS Asset Purchase and (iv) to assist in obtaining approvals from Governmental Entities and consents and notices required to be obtained from or made to other Persons under the EDS APA. Notwithstanding anything in this Agreement to the contrary, the Company shall not be deemed to be in breach of, or to have failed to comply with, any of the covenants herein with respect to the EDS APA (including for purposes of determining whether there has been a failure of a condition precedent pursuant to Section 6.2(b)) so long as either (i) it has acted in good faith to comply with its requirements with respect to the EDS APA set forth herein or (Cii) any such breach or failure is otherwise confidential or proprietary information not the cause of Parent or any of its affiliatesthe transactions contemplated by the EDS APA to not be consummated immediately following the Merger.
Appears in 1 contract
Samples: Merger Agreement (Safeway Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable ’s affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries and each of their respective affiliates to) use its reasonable best efforts to (i) promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and and, (Ax) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, solely with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter HSR Act, in any event within seven fifteen (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (1015) Business Days after the date of this Agreement and (Cy) subject solely with respect to the conditions filings set forth on Section 5.06(c5.06(a) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(cin any event within fifteen (15) of the Company Disclosure Letter within twenty (20) Business Days calendar days after the date of this Agreement), make and not withdraw (without the Company’s consentor cause to be made) all registrations and filings or, if consistent with agency practice, a draft of such a filing, with any Governmental Entity or other persons necessary or 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 or any other Antitrust Law, the FCC Approvals and the State PSC Approvals, and promptly make any further filings pursuant thereto that may be necessary or advisable, including the furnishing to the FCC or any State PSCs of any documents, materials or other information requested, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) In furtherance of the obligations set forth in Section 5.06(a), Parent shall promptly take any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and to obtain all approvals and consents, including approvals and consents under any Antitrust Laws, that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable, including accepting operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, such assets or businesses of Parent, Sub, the Company, the Surviving Corporation or any of their respective affiliates (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity), in each case, conditioned on the Closing, as may be required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions. Neither Parent nor the Company Sub shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division Division, the FCC, any State PSC or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives of the other parties to be present present, to the extent practicable, at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided provide the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. The Company shall, within five (5) Business Days of such request, provide all information reasonably requested by Parent to determine the necessity of any regulatory filing necessary to consummate the Transactions. With respect to each registration, filing and submission made by any party hereto with the FTC, the Antitrust Division, the FCC, any State PSC, or any other Governmental Entity, each of Parent and the Company shall (i) provide the other with all information necessary for the preparation of such registration, filing or submission on a timely basis, and shall work diligently to prosecute the applications for such approvals; and (ii) have the right to review, comment and approve such registration, filing, and submission; provided, however, that materials provided to the other parties may be redacted to remove references to valuation and may, as each party deems advisable and necessary, reasonably designate any material provided to the other under this Section 5.06(c) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, directors or managers of the recipient unless express permission is obtained in advance from the source of the materials (Parent or Company, as the case may be) or its legal counsel.
(d) Notwithstanding anything to the contrary herein or otherwise, but subject to the obligation of Parent set forth in this Section 5.065.06(c), (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2i) Parent shall determine strategy and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiariestiming, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy lead all proceedings and coordinate all activities with respect to seeking any actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby, after consultation with the Transactions or Company, (Cii) is otherwise confidential or proprietary information of Parent or any the Company shall, and shall cause each of its affiliatesSubsidiaries to, use its reasonable best efforts to take such actions as reasonably requested by Parent, after consultation with the Company, in connection with obtaining any such actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers, and (iii) Parent shall have the sole and exclusive right, after consultation with the Company, and subject to Parent’s obligations pursuant to Section 5.06(a) and Section 5.06(b), to propose, negotiate, offer or commit to make or effect any divestitures, dispositions, or licenses of any assets, properties, products, rights, services or businesses, or to agree to any other remedy, requirement, obligation, condition or restriction to resolve any Governmental Entity’s objections to or concerns about the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (West Corp)
Appropriate Action; Consents; Filings. (a) Subject Parent shall (and shall cause Merger Sub, each Guarantor and each of its and their applicable affiliates to) and, subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) shall, use its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable Law to consummate the Transactions and to cause the conditions set forth in Article ARTICLE VI to be satisfied, in each case satisfied as promptly as practicablepracticable after the date of this Agreement. Without limiting the generality of the foregoing, Parent shall (and shall cause Merger Sub, the each Sponsor, each Guarantor and each of its and their applicable affiliates affiliates, representatives, officers, directors and direct and indirect owners to) and and, subject to Section 5.03, the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) as promptly as practicable obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter in any event within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification HSR Act filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(cdescribed in clause (A) of the Company Disclosure Letter and within twenty (20) 20 Business Days after the date of this AgreementAgreement with respect to the filings described in clause (B)), make and not withdraw (without the Company’s prior written consent) all registrations and filings (including, where appropriate and advisable, filings in draft form) with any Governmental Entity or other persons necessary or advisable or as required by applicable Law in connection with the consummation of the Transactions, including (A) the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under the HSR Act or any other Antitrust Law, Law or any Investment Screening Law listed in Section 6.01(b) of the Company Disclosure Letter and (B) promptly make any further filings or submissions pursuant thereto that may be necessary or advisable, (iii) contest and defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order Order with respect to each such lawsuit or other Proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which that may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order Order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this AgreementTransactions. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the The Company and the Company Subsidiaries from shall not be required to make any personconcessions under this Section 5.06 that are not conditioned upon the Closing.
(b) In furtherance of the obligations set forth in Section 5.06(a) and notwithstanding any limitations therein or elsewhere in this Agreement, (i) Parent shall promptly take (and shall cause its Subsidiaries to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and obtain all approvals and consents, including approvals and consents under any Antitrust Laws or Investment Screening Laws required or advisable by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable, including operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or holding separate of, assets or businesses of Parent, Merger Sub, the Company, the Surviving Corporation or their respective Subsidiaries (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Entity) as may be required or advisable to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any Orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions and (ii) upon agreement of the parties hereto, the Company shall make, subject to the condition that the Closing actually occurs, any undertakings (including undertakings to accept operational restrictions or limitations or to make sales or other dispositions, provided that the Company and the Company Subsidiaries may be so required if such offerrestrictions, payment limitations, sales or concession is other dispositions are conditioned upon the consummation of the Transactions) as are required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided, however, that nothing in this Agreement shall require Parent, Merger Sub, or their respective affiliates to commit to or effect any action with respect to the capital stock or other equity or voting interest, assets (whether tangible or intangible), rights, properties, products or businesses of affiliates of Parent or Merger Sub (other than Parent, Merger Sub, and, following consummation of the Transactions, the Company and the Company Subsidiaries).
(bc) Neither Notwithstanding anything in this Agreement to the contrary, neither Parent nor the Company Merger Sub, directly or indirectly, through one or more of their respective affiliates or otherwise, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material materially delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company , including under any Antitrust Laws or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under LawInvestment Screening Laws.
(cd) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other Proceeding by or before any Governmental Entity with respect to the Transactions; , (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other Proceeding; Proceeding and (iii) promptly inform the other parties of any material communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, submission, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or to be submitted to any Governmental Entity in connection with the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or Proceeding and to have access to and be consulted in connection with and provided a reasonable opportunity to review in advance, any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding, including any filings or submissions referred to in Section 5.06(a). Notwithstanding anything to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company Law or any Investment Screening Law).
(e) For the avoidance of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) doubt, this Section 5.06 does not relate govern the obligations of Pxxxxx and Mxxxxx Sub to obtain the Company or the Company Subsidiaries, Financing (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliateswhich are instead governed by Section 5.07).
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject Upon the terms and subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfiedthis Agreement, in each case as promptly as practicable. Without and without limiting the generality other provisions of this Section 6.8, each of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company parties hereto shall (and shall cause each of the Company their applicable Subsidiaries to) use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate, as promptly as practicable, the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, (i) the Company agrees to use its reasonable best efforts to cause the conditions set forth in the Pathfinder Consent and Pathfinder SPA to be satisfied as promptly as practicable, and (ii) each of the parties agrees to use its respective reasonable best efforts to (A) cause the conditions to the Merger set forth in Article VII to be satisfied as promptly as practicable, and (B) obtain all actions or nonactions, necessary consents, Permits (including Environmental Permits)approvals, orders, waivers, approvalsand authorizations of, authorizations and orders from actions or nonactions by, any Governmental Entities or other persons Authority necessary or advisable in connection with the consummation of the Transactionstransactions contemplated by this Agreement, including the Merger, and make all necessary registrations, declarations and filings with, and notices to, any Governmental Authorities (including pursuant to the HSR Act any other applicable Antitrust Law necessary to start any applicable waiting period) and take all reasonable steps as may be necessary to obtain an approval from, or to avoid a suit, action, proceeding or investigation by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger; provided, however, that notwithstanding the foregoing or anything else to the contrary set forth in this Agreement, no party shall be required by this Agreement to (x) agree to any divestitures, licenses, hold separate arrangements or similar matters, including material covenants affecting business operating practices, except to the extent (and each party will agree to any divestitures, licenses, hold separate arrangements or similar matters, including material covenants affecting business operating practices, so long as) any such divestitures, licenses, arrangements, matters or covenants would not reasonably be expected to be material to Parent and the Company, taken as a whole or (y) defend or contest any proceeding by a Governmental Authority which questions the validity or legality of the transactions contemplated by this Agreement or seeks damages in connection therewith. Parent will not take any actions that would preclude, impair or delay the consummation of the Merger.
(b) Without limiting the general obligations of Parent or Merger Sub under Section 6.8(a), Parent and Merger Sub shall use reasonable best efforts to take, and cause their respective Affiliates to promptly take, and, notwithstanding anything to the contrary contained in this Agreement, including Section 6.1 the Company and its Affiliates shall be permitted to take (without affecting any representation, warranty, covenant or condition in this Agreement), all steps necessary to avoid or eliminate impediments to the transactions contemplated by this Agreement, including obtaining all consents under any Antitrust Laws that may be required by any Governmental Authority so as to enable the parties to close the transactions contemplated by this Agreement, including the Merger, as promptly as practicable.
(c) In furtherance and not in limitation of the foregoing, each of the parties hereto shall promptly (and in no event later than fifteen (15) Business Days following the date hereof) (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and (ii) make any other appropriate filing required pursuant to any Antitrust Law, and (iii) thereafter promptly any other required submissions under the HSR Act and any other applicable Antitrust Law, in each case, with respect to the transactions contemplated hereby, including the Merger. In furtherance and not in limitation of the foregoing or anything else in this Section 6.8, each party agrees to use its respective reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to cause the expiration or early termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act and any other Antitrust Law as soon as practicable.
(d) Each of the parties hereto shall use reasonable best efforts to prepare and prefile with the Committee on Foreign Investment in the United States (“CFIUS”) a draft joint voluntary notice and other appropriate documents within the meaning of 31 C.F.R. § 800.401(f) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, and then as promptly as practicable after notification by CFIUS that the draft joint voluntary notice satisfies all requirements of 31 C.F.R. § 800.402, jointly file with CFIUS a formal joint voluntary notice within the meaning of 31 C.F.R. § 800.402 (Ba “Notice”). The parties shall use reasonable best efforts to respond to any request for additional information or documentary material by CFIUS or its member agencies as promptly as practicable (and in any event in accordance with applicable regulatory requirements), and prepare and file any other submissions with CFIUS that are formally requested by CFIUS to be made, or which the parties mutually agree should be made, in each case in connection with the transactions contemplated by this Agreement, (collectively with the Notice, “CFIUS Filings”).
(e) To the extent permitted by applicable law and not prohibited by applicable Governmental Authorities and subject to all applicable privileges (including the attorney client privilege), the parties shall (i) cooperate and coordinate with the other in the making of the CFIUS Filings and in connection with resolving any investigation, request or other inquiry of CFIUS (including, to the extent permitted by applicable law, providing copies, or portions thereof, of all such documents to the non-filing parties prior to filing, except for any exhibits providing the personal identifier information required by 31 C.F.R § 800.402(c)(6)(vi), and considering all reasonable additions, deletions or changes suggested in connection therewith), (ii) supply the other with any information and reasonable assistance that may be required or reasonably requested in connection with the making of such CFIUS Filings, and (iii) subject to Section 6.8(g), use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to obtain CFIUS Approval as promptly as practicable, and to avoid any CFIUS-related impediment to the consummation of the transactions contemplated by this Agreement, including using reasonable best efforts to take all such action as reasonably may be necessary to resolve such objections, if any, that CFIUS or any other Governmental Authority may assert with respect to the filings required transactions contemplated by this Agreement.
(f) Subject to applicable Law and all applicable privileges (including attorney-client privilege) and except as prohibited by any Governmental Authority, each of the parties or their “ultimate parent entities” under hereto will promptly inform the jurisdictions set forth on Section 5.06(b) other of any material communication from any Governmental Authority regarding the Company Disclosure Letter within ten (10) Business Days after the date of transactions contemplated by this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, in connection with respect to the pre-notification any Regulatory Filing or any other filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the date of this Agreement), make and not withdraw (without the Company’s consent) all registrations and filings submissions with any Governmental Entity or other persons necessary or advisable in connection with Authority relating to the consummation of the Transactions, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms transactions contemplated by this Agreement. In no event shall Parentconnection with and without limiting the foregoing, Subto the extent reasonably practicable and unless prohibited by applicable law or by the applicable Governmental Authority, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: will (i) give the each other parties prompt reasonable advance notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before all meetings with any Governmental Entity with respect Authority relating to the Transactions; transactions contemplated by this Agreement, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other parties informed as reasonably apprised with respect to any material communications with any Governmental Authority regarding the status transactions contemplated hereby, (iv) cooperate in the filing of any such requestanalyses, inquirypresentations, investigationmemoranda, action briefs, arguments, opinions or other Proceeding; and written communications explaining or defending the transactions contemplated by this Agreement, (iiiv) promptly inform the provide each other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the a reasonable advance opportunity to review in advance any documentand comment upon, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filingrespect to, analysisall such material written communications (including applications, appearanceanalyses, presentationpresentations, memorandummemoranda, briefbriefs, argumentarguments and opinions) with a Governmental Authority, opinion and (vi) provide each other (or proposal made counsel of each party, as appropriate) with copies of all material written communications to or submitted to from any Governmental Entity in connection with Authority relating to the Transactionstransactions contemplated by this Agreement. Any such disclosures, rights to participate, or provisions of information by one party to the other may be made on a counsel-only basis to the extent required under applicable law and provisions of this Agreement.
(g) Notwithstanding anything to the contrary contained in this Section 5.06Agreement, neither Parent nor the Company shall, as a condition to receiving CFIUS Approval, be required to agree to any divestitures, licenses, hold separate arrangements or similar matters, including material covenants affecting business operating practices, except to the extent (1and each party will agree to any divestitures, licenses, hold separate arrangements or similar matters, including material covenants affecting business operating practices, so long as) any such divestitures, licenses, arrangements, matters or covenants would not reasonably be expected to be material to Parent and the Company, taken as a whole. Notwithstanding the foregoing, no party hereto to this Agreement shall be required to agree to any term or take or omit to take any action in violation of this Agreement by virtue of providing information connection with the CFIUS Approval that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law not conditioned upon the consummation of the transactions contemplated by this Agreement.
(including the HSR Act or any other Antitrust Lawh) or redacted (A) to remove references concerning the valuation Each of Parent, Parent and the Company shall be responsible for 50% of all filing fees payable by the parties and their respective Affiliates in connection with obtaining the Antitrust Approvals and CFIUS Approval (collectively “Shared Filing Fees”). If either Parent or the Company, or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub Affiliates, pays any Shared Filings Fees, the other party shall not be required to share with promptly reimburse the Company any information that (A) does not relate to paying party for 50% of the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information amount of Parent or any such Shared Filing Fees upon presentation of its affiliatesan invoice therefor.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.035.6 and Section 5.4(c), each of Parent and the Company shall (and Parent shall cause each of its affiliates to) parties hereto will use its their respective reasonable best efforts to consummate and make effective the Transactions and to cause the applicable conditions to the Offer and the Merger set forth in Annex I and Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to including (i) promptly obtain the obtaining of all necessary actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations consents and orders approvals from Governmental Entities Authorities or other persons necessary in connection with the consummation of the Transactions, 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 advisable to avoid an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the Transactions, (ii) as promptly as practicable (the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and (Aiii) subject the execution and delivery of any additional instruments necessary to consummate the conditions set forth on Section 5.06(a) 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. Without limiting the generality of the foregoing, the Company Disclosure Letter, with respect and Parent shall prepare and file (i) the notification and report forms required to the filings required of the parties or their “ultimate parent entities” be filed under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter HSR Act within seven two (72) Business Days after following the date of this Agreement, (Bii) with respect the notification to the filings Department of State, Directorate of Defense Trade Controls required to be filed pursuant to 22 C.F.R. Part 122.4(b) of ITAR (“ITAR Notice”) to be filed within ten (10) days following the date of this Agreement; and (iii) a draft, but incomplete, CFIUS Notice prepared by the parties and pre-filed with CFIUS within two (2) Business Days following the date of this Agreement, and then within ten (10) days following the date of this Agreement, the filing of a CFIUS Notice and the provision to CFIUS of any additional or their “ultimate parent entities” supplemental information requested by CFIUS or its member agencies during the CFIUS review (and, if applicable, investigation). The Company and Parent shall prepare and file any notification or other document required to be filed under any applicable foreign antitrust or competition-related Law of the jurisdictions set forth on in Section 5.06(b) 3.5 of the Company Disclosure Letter in connection with Transactions within ten five (105) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after following the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor and the Company shall take any actionwill comply at the earliest practicable time, including acquiring or making any investment and in any person event no later than required by the Governmental Authority, with any request for additional information, documents or other materials received by it from any division Governmental Authorities with respect to CFIUS Notice or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give ITAR Notice and will cooperate with the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity hereto in connection with respect CFIUS Filing and ITAR filing. Parent and Company will each use its best efforts to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any oral communication with, and to or from the FTC, the Antitrust Division or any other Governmental Entity regarding extent they do not contain confidential information unrelated to the Transactions. In addition, except as may be prohibited by provide copies of written communications with, any Governmental Entity Authority regarding any such filings. Without the consent of the other party (which consent shall not be unreasonably withheld, delayed or by conditioned), no party will independently participate in any Law, in connection scheduled meeting or teleconference with any Governmental Authority in respect of such request, inquiryfilings, investigation or Proceeding, each other inquiry without giving the other party hereto will permit authorized representatives prior notice of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicablepermitted by such Governmental Authority, provided the opportunity to review attend and participate in advance such meeting. Neither Parent nor Company shall withdraw the CFIUS Filing or ITAR filing or take any documentother step that has the effect of suspending, opinion extending or proposal made terminating any applicable waiting period, nor shall Parent or submitted Company enter into any agreement with a Governmental Authority not to any Governmental Entity in connection with such requestconsummate (or regarding the timing of consummation of) the Transactions, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with without the other parties and will consider in good faith the views prior written consent of the other parties party.
(c) Notwithstanding anything herein to the contrary, Parent shall take or cause Acquisition Sub to take any and all action necessary, including but not limited to (i) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective subsidiaries; (ii) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective subsidiaries; (iii) terminating any venture or other arrangement; (iv) creating any relationship, contractual rights or obligations of the Company or Parent or their respective subsidiaries or (v) effectuating any other change or restructuring of the Company or Parent or their respective subsidiaries (and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with any Governmental Authority in connection with any filingof the foregoing and in the case of actions by or with respect to the Company or its subsidiaries or its or their businesses or assets; by consenting to such action by the Company and provided, analysisthat any such action may, appearanceat the discretion of the Company, presentationbe conditioned upon consummation of the Offer or the Merger) (each a “Divestiture Action”) to ensure that no Governmental Entity enters any order, memorandumdecision, briefjudgment, argumentdecree, opinion ruling, injunction (preliminary or proposal made permanent), or submitted establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Offer or the Merger, or to ensure that no Governmental Authority with the authority to clear, authorize or otherwise approve the consummation of the Offer or the Merger, fails to do so by the Termination Date. In the event that any action is threatened or instituted challenging the Offer or the Merger as violative of any Antitrust Law or Exon-Xxxxxx or with respect to CFIUS, Parent shall take all action necessary, including but not limited to any Governmental Entity in connection with the TransactionsDivestiture Action to avoid or resolve such action. Notwithstanding anything to the contrary in contained herein (including this Section 5.065.4), Parent shall not be required under any circumstance to propose, negotiate, commit to or undertake any Divestiture Acton that would result in a material adverse effect on the combined businesses of SKF USA (1and its subsidiaries) no party hereto shall and the Company (and its subsidiaries), taken as a whole. In the event that any permanent or preliminary injunction or other order is threatened or becomes reasonably foreseeable to be entered in violation any proceeding that would make consummation of the Transactions in accordance with the terms of this Agreement by virtue unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of providing information that is competitively sensitive the Transactions, Parent shall use its reasonable best efforts to one another on an “outside counsel only” take promptly any and all steps necessary to avoid or prevent such injunction or order so as to permit such consummation prior to the Termination Date. The Company reasonably shall cooperate with Parent and shall use its reasonable best efforts to assist Parent in resisting and reducing any Divestiture Action and any threatened or reasonably foreseeable permanent or preliminary injunction or other basis designed to ensure compliance with applicable Law order.
(including the HSR Act or any other Antitrust Lawd) or redacted (A) to remove references concerning the valuation Each of Parent, Parent and the Company shall give (or shall cause its respective subsidiaries to give) any notices to third parties, and the Company shall use, and cause each of their respective Subsidiaries or its affiliates to use, its reasonable best efforts, and Parent shall use its reasonable best efforts to cooperate with the Company in its efforts, to obtain any Third Party consents not covered by paragraphs (Ba) as necessary to address privilege concerns and (2b) Parent and Sub identified on Section 5.4(d) of the Company Disclosure Letter; provided, however, that the Company shall not be required to share make any payment in connection with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals ParentCompany’s (or its affiliates’’ obligations under this Section 5.4(d). Each of the parties hereto (i) valuation will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or negotiating strategy submissions and (ii) will cooperate in responding to any inquiry from a Governmental Authority, including immediately informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. Notwithstanding the Transactions or (Cforegoing, obtaining any Third Party consents pursuant to this Section 5.4(d) is otherwise confidential or proprietary information shall not be considered a condition to the obligations of Parent and Acquisition Sub to consummate the Offer or any of its affiliatesthe Merger.
Appears in 1 contract
Samples: Merger Agreement (Kaydon Corp)
Appropriate Action; Consents; Filings. (a) Subject Prior to Section 5.03the Effective Time, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to obtain any Consents of third parties with respect to any Contracts of the Company or any of its Subsidiaries, as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract of the Company or any of its Subsidiaries as a result of the execution, performance or consummation of the Transactions; provided that, the Company and Parent shall determine reasonably and jointly whether to seek any Consents from third parties under any Company Material Contract. In the event that such third party Consent described in this Section 4.8(a) shall not be obtained, the Company and Parent shall determine reasonably and jointly whether to take any further actions with respect to such Contracts; provided, further, however, that without its consent (such consent to be given or withheld in its sole discretion), the Company shall not be required to pay any amount or change its business practices in order to obtain any such Consent, waiver or approval. Prior to the Effective Time, the Company shall furnish Parent with (i) an executed affidavit that satisfies the requirements of Treasury Regulation Section 1.1445-2(c)(3)(i) and (ii) a notice of such affidavit to the Internal Revenue Service satisfying the requirements of Treasury Regulation Section 1.897-2(h).
(b) Subject to Section 4.8(c) and the other terms and conditions of this Agreement, the Company and Parent agree, and Parent and the Company agree to cause their respective Subsidiaries to use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions and to use their respective reasonable best efforts to cause the conditions to each Party’s obligation to close the Transactions as set forth in Article 5 to be satisfied as promptly as practicable, including taking all actions necessary (i) to obtain all Governmental Consents required for the satisfaction of the conditions set forth in Article VI Section 5.1(c), (ii) to effect all such necessary registrations and filings with the Governmental Authorities in order to consummate and make effective the Merger and the other Transactions, (iii) to comply with all requirements under applicable Law which may be satisfiedimposed on it with respect to this Agreement and the Merger and (iv) to defend any Proceedings, whether judicial or administrative, brought under, pursuant to or relating to any regulatory Law challenging this Agreement or the consummation of the Transactions. The Parties shall cooperate fully with each other to the extent necessary in connection with the foregoing.
(c) In connection with the efforts referenced in Section 4.8(b) and without limiting the generality of the undertaking pursuant thereto, Parent and Company shall promptly make all filings which may be required for the satisfaction of the condition set forth in Section 5.1(c) by each of them in connection with the consummation of the Transactions, which, in any event, shall be made within ten Business Days following the Agreement Date with respect to the initial filings required under the HSR Act and all other applicable Antitrust Laws. In addition, Parent and the Company agree, and shall cause each case of their respective Subsidiaries, to cooperate and to use their respective reasonable best efforts to obtain any Governmental Consents required for the satisfaction of the conditions set forth in Section 5.1(c) as contemplated by Section 4.8(b) above as promptly as practicablepossible, including, within ten Business Days of the Agreement Date, to make all other necessary filings, notifications or registrations to obtain all such Governmental Consents and to respond as promptly as practicable to any requests for information from any Governmental Authority. In no event shall Parent be required to (i) sell or otherwise dispose of, hold separate or agree to sell or dispose of, any assets, categories of assets or businesses of Parent or its Subsidiaries, (ii) amend, modify or terminate existing relationships, contractual rights or obligations or (iii) amend, modify or terminate existing licenses or other intellectual property agreements or enter into new licenses or other intellectual property agreements to avoid, prevent or terminate any action by the U.S. Federal Trade Commission or the U.S. Department of Justice or any other Governmental Authority which would restrain, enjoin or otherwise prevent consummation of the Transactions. Each Party shall furnish to the other such necessary information and assistance as the other Party may reasonably request in connection with the preparation of any necessary filings or submissions by it to any Governmental Authority. Neither Party shall Consent to any voluntary extension of any statutory deadline or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Antitrust Law or other regulatory Law unless the other Party has given its prior written Consent to such extension or delay.
(d) Parent and the Company will consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other in advance (to the extent legally permissible), any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party hereto in connection with Proceedings under or relating to any Antitrust Laws. Without limiting the generality of the foregoing, Parent shall (in connection with this Agreement and shall cause Subthe Transactions, the Guarantor Parties agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to any Antitrust Laws, (ii) give each other an opportunity to participate in each of such meetings, (iii) give each other reasonable advance notice of all substantive oral communications with any Governmental Authority relating to any Antitrust Laws, (iv) if any Governmental Authority initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other Party of the substance of such communication, (v) provide each other with a reasonable advance opportunity to review and its comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and their applicable affiliates toproposals) with a Governmental Authority regarding any Antitrust Laws, and (vi) provide each other with copies of all substantive communications from any Governmental Authority relating to any Antitrust Laws. Any disclosures or provision of copies by one Party to the other may be made on an outside counsel basis, if appropriate.
(e) Each of Parent and the Company shall notify and keep the other advised as to (i) any material communication from any Governmental Authority regarding any of the Transactions, and (ii) any litigation or administrative Proceeding pending and known to such Party, or to its Knowledge threatened, which challenges, or would challenge, the Transactions. The Company and Parent shall not take any action inconsistent with their obligations under this Agreement or, without prejudice to the Company’s or Parent’s rights under this Agreement, which would materially hinder or delay the consummation of the Transaction
(f) Notwithstanding anything to the contrary contained in this Agreement, Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary Antitrust Laws or competition clearances and shall cause take the lead in all meetings and communications with any Governmental Authority in connection with obtaining any necessary Antitrust Laws or competition clearances. All expenses incurred in connection with the foregoing shall be shared equally by Parent and the Company. In furtherance and not in limitation of this Section 4.8(f), subject to applicable Laws relating to the exchange of information, each of the Company Subsidiaries to) use its reasonable best efforts to (i) promptly obtain all actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event Parent shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any such request, inquiry, investigation, action or other legal proceeding. In addition, except as may be prohibited by any Governmental Authority or by Law, in connection with any such request, inquiry, investigation, action or other legal proceeding, each of the Company and Parent shall permit authorized Company Representatives and Parent Representatives, respectively, (x) to participate at or in each substantive meeting, conference or telephone call with a representative of a Governmental Authority relating to such request, inquiry, investigation, action or other legal proceeding and (y) to have reasonable access to and be consulted in connection with any material document, opinion or proposal made or submitted to any Governmental Entity Authority in connection with any such request, inquiry, investigation, action or other legal proceeding. Parent and the TransactionsCompany may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 4.8(f) as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. Notwithstanding anything to the contrary in this Section 5.064.8(f), (1) no materials provided to the other party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “or its outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or may be redacted (A) to remove references concerning the valuation valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of Parent, the Company or any of and their respective Subsidiaries or Subsidiaries.
(Bg) During the period from the Agreement Date until the Closing Date, except as necessary to address privilege concerns and (2) required by this Agreement, Parent and Sub its Affiliates shall not not, without the prior written consent of the Company, engage in any action or enter into any transaction or permit any action to be required taken or transaction to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of be entered into by Parent or any of its affiliatesAffiliates, that would reasonably be expected to have a Parent Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Diamond Foods Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03The Company, each of Parent and the Company Merger Sub shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its respective reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under Applicable Law, including Antitrust Law, or otherwise to consummate and make effective the Transactions as promptly as practicable, (ii) obtain all actions or nonactions, from any Governmental Authorities any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations or orders, including the FCC Consents and orders from PSC Consents, required to be obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, or to avoid any Proceeding by any Governmental Entities or other persons necessary or advisable Authority (including those in connection with the Antitrust Laws), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, Transactions and (iiiii)(A) as promptly as practicable (reasonably practicable, and (A) subject to in any event within ten Business Days after the conditions set forth on Section 5.06(a) of the Company Disclosure Letterdate hereof, make all necessary filings, and thereafter make any other required submissions, with respect to the filings this Agreement required of the parties or their “ultimate parent entities” under the jurisdictions set forth HSR Act, (B) as promptly as reasonably practicable, and in any event within ten Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required in order to obtain the FCC Consents (the “FCC Submissions”), (C) as promptly as reasonably practicable, and in any event within twenty Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required in order to obtain the PSC Consents listed on Section 5.06(a7.01(a)(iii)(C) of the Company Disclosure Letter within seven (7the “PSC Submissions”), (D) Business Days as promptly as reasonably practicable after the date of this Agreementhereof, (B) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under any other Applicable Law and (E) at the filings required request of Parent, the parties or their “ultimate parent entities” under the Company will, not later than four Business Days prior to Closing, file to withdraw any Company Licenses for jurisdictions set forth listed on Section 5.06(b7.01(a)(iii)(E) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) which withdrawal may be effective as of the Closing Date). The Company Disclosure Letter, with respect and Parent shall furnish to the pre-notification filings each other all information required of the parties for any application or their “ultimate parent entities” other filing under the jurisdictions set forth on Section 5.06(c) rules and regulations of the Company Disclosure Letter within twenty (20) Business Days after the 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 or advisable Applicable Law in connection with the consummation of the Transactions, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) Neither The Company and Parent nor the Company shall take give (or shall cause their respective Subsidiaries to give) any actionnotices to Third Parties, including acquiring or making any investment in any person or any division or assets thereofand use, that would reasonably be expected and cause their respective Subsidiaries to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concedeuse, or offer to provide or concede, anything of value in order their reasonable best efforts to obtain any consentThird Party consents, approval (i) necessary, proper or authorization under Lawadvisable to consummate the Transactions, or (ii) required to prevent a Company Material Adverse Effect from occurring prior to or after the Effective Time.
(c) Without limiting the generality of anything contained in this Section 5.067.01, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Merger or any of the other Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action request or other Proceeding; and (iii) promptly inform the other parties of any communication to or from any Governmental Authority regarding the FTCMerger or any of the other Transactions; (iv) respond as promptly as practicable to any additional requests for information received by any party from any Antitrust Authority, the Antitrust Division FCC, any State PSC or any other Governmental Entity regarding Authority with respect to the Transactions. In additionTransactions or filings contemplated by Section 7.01(a); and (v) use reasonable best efforts to (A) obtain termination or expiration of the waiting period under the HSR Act and such other approvals, except consents and clearances as may be prohibited necessary, proper or advisable under any Applicable Laws and (B) prevent the entry in any Proceeding brought by a Governmental Authority or any other Person of any Governmental Entity Order which would prohibit, make unlawful or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives delay the consummation of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingTransactions. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Merger or any of the other Transactions. In addition, except as may be prohibited by any Governmental Authority or by Applicable Law, in connection with any such request or Proceeding, each party hereto will permit Representatives of the other parties to be present at each meeting or conference relating to such request or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Authority in connection with such request or Proceeding.
(d) Notwithstanding anything to the contrary in this Section 5.06Agreement, in connection with obtaining any approval or consent related to any Applicable Law, Parent shall cooperate in good faith with the Governmental Authorities and undertake promptly any and all action required to complete lawfully the Transactions as soon as practicable (1but in any event prior to the End Date) no party hereto and any and all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any Proceeding in any forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would (or to obtain the agreement or consent of any Governmental Authority to the Transactions the absence of which would) delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Merger, including (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for the sale, licensing or other disposition, or the holding separate of, or other limitations or restrictions on, particular assets, categories of assets or lines of business of the Acquired Companies and (ii) promptly effecting the disposition, licensing or holding separate of assets or lines of business of the Acquired Companies, in each case, at such time as may be necessary to permit the lawful consummation of the Transactions on or prior to the End Date, except if any of the aforementioned actions, either individually or in the aggregate, is or would reasonably be expected to have a Company Material Adverse Effect.
(e) Parent shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns solely responsible for and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate pay all fees payable to the Company Antitrust Authorities or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to FCC Submissions and PSC Submissions in connection with the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesTransactions.
Appears in 1 contract
Samples: Merger Agreement (Cbeyond, Inc.)
Appropriate Action; Consents; Filings. (a) Subject to the terms and conditions of this Agreement and except to the extent permitted by Section 5.035.1, each of Parent and the Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its commercially reasonable best efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable under applicable Law to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, (ii) take prompt action to obtain all actions or nonactions, from any Governmental Entity any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made by the Company and orders from Parent or any of their Subsidiaries, or to avoid any action or proceeding by any Governmental Entities or other persons necessary or advisable Entity (including, without limitation, those in connection with the consummation of HSR Act or other foreign Law or regulations and to make the Transactions, requisite initial filing in connection with the HSR Act not later than two (ii) as promptly as practicable (and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (202) Business Days after the 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 or advisable in connection with the consummation authorization, execution and delivery of the Transactions, including the filings required of the parties or their “ultimate parent entities” under the HSR Act or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or and the consummation of the Transactionstransactions contemplated herein, in each case until the issuance of a finaland (iii) make all necessary filings, non-appealable order and thereafter make any other required submissions, with respect to this Agreement and the Merger required under the Securities Act, the Exchange Act and any other applicable Law; provided, however, that the Company and Parent shall cooperate with each other in connection with the making of all such lawsuit filings, including, subject to applicable Law, providing copies of all such documents to the non-filing party and giving due consideration to reasonable additions, deletions or changes suggested in connection therewith. The Company and Parent shall furnish to each other all information required for any application or other Proceeding, (iv) seek filing to have lifted or rescinded be made pursuant to the rules and regulations of any injunction or restraining order which may adversely affect applicable Law in connection with the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms transactions contemplated by this Agreement. In no event shall Parent, SubSubject to the terms and conditions of this Agreement and except to the extent permitted by Section 5.1, the Company or and Parent shall not take any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to makeaction, or refrain from taking any action, the effect of which would be to offer to make, any payments to any third parties delay or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts impede the ability of the Company and Parent to consummate the Company Subsidiaries from any persontransactions contemplated by this Agreement, provided that unless in such party’s reasonable judgment, taking such action is consistent with achieving the Company and ultimate objective of consummating the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the TransactionsMerger.
(b) Neither Parent nor the Company shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.06, each party hereto shall: (i) give the other The parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties one another, and will consider in good faith the views of the other parties one another, in connection with any filinganalyses, analysisappearances, appearancepresentations, presentationmemoranda, memorandumbriefs, briefarguments, argument, opinion or proposal opinions and proposals made or submitted to by or on behalf of any Governmental Entity party hereto in connection with the Transactions. Notwithstanding anything proceedings under or relating to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other federal or state Antitrust Law or fair trade Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliates.
Appears in 1 contract
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the Company shall (and Parent shall cause each of its affiliates affiliated investment funds to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub and each of Parent’s or Sub, the Guarantor and its and their applicable affiliates ’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 or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions, (ii) as promptly as practicable (practicable, and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter in any event within seven (7) ten Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisable, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or 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 each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and deliver any additional instruments necessary or advisable to consummate the Transactions on the terms contemplated by this Agreement. In no event shall Parent, Sub, the Company or any of the Company Subsidiaries be required (or permitted without the prior consent of Parent) to make, or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactions.
(b) In furtherance of the obligations set forth in Section 5.05(a), Parent shall (and shall cause its affiliated investment funds to) use reasonable best efforts to promptly take any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and obtain all approvals and consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to consummate the Transactions as promptly as practicable. Neither Parent nor the Company Sub, directly or indirectly, through one or more of their respective affiliated investment funds, shall take any action, including acquiring or making any investment in any person or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the Transactions. In no event shall the Company or any of the Company Subsidiaries be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value in order to obtain any consent, approval or authorization under Law.
(c) Without limiting the generality of anything contained in this Section 5.065.05, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action investigation or other legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action investigation or other legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. Notwithstanding anything to the contrary In addition, except as may be prohibited by any Governmental Entity or by any Law, in this Section 5.06connection with any such request, (1) no inquiry, investigation or legal Proceeding, each party hereto shall will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to and be consulted in violation of this Agreement by virtue of providing information that is competitively sensitive connection with any document, opinion or proposal made or submitted to one another on an “outside counsel only” any Governmental Entity in connection with such request, inquiry, investigation or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share with the Company any information that (A) does not relate to the Company or the Company Subsidiaries, (B) reveals Parent’s (or its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliateslegal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (West Marine Inc)
Appropriate Action; Consents; Filings. (a) Subject to Section 5.03, each of Parent and the The Company shall (and Parent shall cause each of its affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in Article VI to be satisfied, in each case as promptly as practicable. Without limiting the generality of the foregoing, Parent shall (and shall cause Sub, the Guarantor and its and their applicable affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries to) use its reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including the Financings, (ii) obtain all actions or nonactions, from any Governmental Entities any consents, Permits (including Environmental Permits)licenses, permits, waivers, approvals, authorizations and or orders from required to be obtained by Parent or the Company or any of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entities or other persons necessary or advisable Entity (including those in connection with the consummation HSR Act and state Law (including Title 40, Public Utilities and Carriers, of the TransactionsA.R.S.)), (ii) as promptly as practicable (in connection with the authorization, execution and (A) subject to the conditions set forth on Section 5.06(a) of the Company Disclosure Letter, with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(a) of the Company Disclosure Letter within seven (7) Business Days after the date of this Agreement, (B) with respect to the filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(b) of the Company Disclosure Letter within ten (10) Business Days after the date delivery of this Agreement and (C) subject to the conditions set forth on Section 5.06(c) of the Company Disclosure Letter, with respect to the pre-notification filings required of the parties or their “ultimate parent entities” under the jurisdictions set forth on Section 5.06(c) of the Company Disclosure Letter within twenty (20) Business Days after the 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 or 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 or any other Antitrust Law, and promptly make any further filings pursuant thereto that may be necessary or advisabletransactions contemplated hereby, (iii) cause the satisfaction of all conditions set forth in Article VI, (iv) defend all lawsuits or other legal, regulatory, administrative regulatory or other Proceedings proceedings to which it or any of its affiliates is a party challenging or affecting this Agreement or the consummation of the Transactionstransactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceedingorder, (ivv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order with respect thereto, (v) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions transactions contemplated hereby and (vi) execute as promptly as practicable, and deliver in any additional instruments event within sixty (60) days after the date hereof, make or cause to be made all necessary applications and filings (other than with respect to applications and filings to be made under the HSR Act or advisable with the FCC, which shall be made at a time mutually agreeable to consummate Parent and the Transactions on Company, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement and the terms Merger required under or with respect to the Company Required Governmental Approvals, the DPA and any other applicable Law; provided, that the Company and Parent shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required in connection with the consummation of the Merger and seeking any such actions, consents, approvals or waivers or making any such filings. Each of Merger Sub and the Company shall have the right to review and approve in advance drafts of all such necessary applications, notices, petitions, filings and other documents made or prepared in connection with the transactions contemplated by this Agreement, which approval shall not be unreasonably withheld or delayed. The Company and Parent shall furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. In no event shall Parent, Sub, Neither the Company or nor Parent shall consent to any voluntary delay of the Company Subsidiaries be required (or permitted Closing at the behest of any Governmental Entity without the prior consent of Parent) to makethe other, which consent shall not be unreasonably withheld, delayed or to offer to make, any payments to any third parties or concede, or offer to concede, anything of value, in each case, in order to obtain any consent, approval or authorization under contracts of the Company and the Company Subsidiaries from any person, provided that the Company and the Company Subsidiaries may be so required if such offer, payment or concession is conditioned upon the consummation of the Transactionsconditioned.
(b) In the application filed with the ACC for the ACC Approval, Merger Sub and the Company shall agree to include specific commitments and agreements in such application to implement the principles set forth in Section 5.5(b) of the Company Disclosure Letter. The Company agrees that it will not agree to, or accept, any additional or different agreements, commitments or conditions in connection with the Merger pursuant to any settlement or otherwise with the ACC, the staff of the ACC or any other Person without the prior written consent of Parent.
(c) Neither Ultimate Parent, Parent nor the Company Company, directly or indirectly through one or more of their respective affiliates, shall take any action, including acquiring or making any investment in any person corporation, partnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the TransactionsMerger. In Without limiting the foregoing, Parent agrees to use its reasonable best efforts to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition or trade regulation Law or any other Law applicable to the Company, any Company Subsidiary or the Merger that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur as promptly as practicable (and in any event, no event shall later than the Extended Outside Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Parent or the Company or any of their respective Subsidiaries or (B) accepting any operational restrictions, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take actions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain or freely operate, any of the assets, properties, licenses, rights, product lines, operations or businesses of Parent, the Company Subsidiaries or any of their respective Subsidiaries, in each case as may be permitted (without the prior consent of Parent) to provide or concede, or offer to provide or concede, anything of value required in order to obtain avoid the entry of, or to effect the lifting or dissolution of, any consentinjunction, approval temporary restraining order or authorization under Lawother order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Effective Time or the Closing, as applicable. Notwithstanding the foregoing or anything in this Agreement to the contrary, Parent shall not be required to, and the Company shall not, in connection with obtaining any consents or approvals hereunder, or in connection with otherwise complying with any provisions of this Agreement, consent to or take any action of the types described above, including proposing or making any divestiture or other undertaking or proposing, accepting or entering into any consent decree, hold separate order or operational restriction, other than as specifically set forth in Section 5.5(b) of the Company Disclosure Letter, in each case, that, (x) individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of Surviving Corporation and its Subsidiaries taken as a whole; or (y) individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of Ultimate Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger (any such divestiture or other undertaking, a “Regulatory Burdensome Effect”); provided, for purposes of this sentence Ultimate Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger, shall be deemed to be 100% of the size and scale (financially, commercially, operationally and otherwise) as the Surviving Corporation and its Subsidiaries taken as a whole.
(cd) The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain any third party consents (i) necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement or (ii) disclosed in the Company Disclosure Letter or the Parent Disclosure Letter, as applicable; provided, however that the Company and Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Scheduled Contracts in connection with consummation of the Merger and in seeking any such actions, consents, approvals or waivers. In the event that either party shall fail to obtain any third party consent described in this Section 5.5(d), such party shall use its reasonable best efforts, and shall take any such actions reasonably requested by the other party hereto, to minimize any adverse effect upon the Company and Parent, their respective Subsidiaries and their respective businesses resulting, or which could reasonably be expected to result, after the Effective Time, as applicable, from the failure to obtain such consent.
(e) Without limiting the generality of anything contained in this Section 5.065.5, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or other Proceeding legal proceeding by or before any Governmental Entity with respect to the TransactionsMerger or any of the other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or other Proceedinglegal proceeding; and (iii) promptly inform the other parties of any communication to or from the FTCFederal Trade Commission, the Antitrust Division Department of Justice, the FERC, the FCC, the Arizona Department of Environmental Quality (“ADEQ”), the ACC, CFIUS or any other Governmental Entity regarding the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provided the opportunity to review in advance any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or ProceedingMerger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will use reasonable efforts to permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(f) Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the Transactions. Notwithstanding anything right to control or direct the operations of the Company prior to the contrary in this Section 5.06, (1) no party hereto shall be in violation of this Agreement by virtue of providing information that is competitively sensitive Effective Time. Prior to one another on an “outside counsel only” or other basis designed to ensure compliance with applicable Law (including the HSR Act or any other Antitrust Law) or redacted (A) to remove references concerning the valuation of ParentEffective Time, the Company or any of their respective Subsidiaries or (B) as necessary to address privilege concerns and (2) Parent and Sub shall not be required to share exercise, consistent with the Company any information that (A) does not relate to the Company or the Company Subsidiariesterms and conditions of this Agreement, (B) reveals Parent’s (or complete unilateral control and supervision over its affiliates’) valuation or negotiating strategy with respect to the Transactions or (C) is otherwise confidential or proprietary information of Parent or any of its affiliatesbusiness operations.
Appears in 1 contract
Samples: Merger Agreement (UNS Energy Corp)
