Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreement, each of the parties hereto shall use its 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 laws and regulations to consummate the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten (10) business days of the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as possible. (b) In connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, each of the parties hereto shall use its best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any of the transactions contemplated hereby and (iii) subject to confidentiality obligations of each party to the other, permit each other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
Appears in 1 contract
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreement, each of the parties hereto shall Buyer and Sellers will use its best efforts their respective Best Efforts to take, or cause to be takentaken (including by causing any Affiliates to take actions), all actions and to do, or cause to be done, all things necessary or desirable under applicable Laws to consummate the Contemplated Transactions, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten (10) business days of the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as possibleContemplated Transactions.
(b) In connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, each of the parties Each Party hereto shall use its best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep promptly inform the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or from any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, Authority regarding any of the transactions contemplated hereby and (iii) subject to confidentiality obligations of each party Contemplated Transactions. If any Party or affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to the otherContemplated Transactions, permit each then such Party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party Party, an appropriate response in compliance with such request.
(c) Sellers and Buyer shall, with respect to review any material communication given by it toa threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the Parties hereto to consummate the Contemplated Transactions, to use their respective Best Efforts to prevent the entry, enactment or promulgation thereof, as the case may be.
(d) Sellers and Buyer agree, and consult with each other in advance of any meeting or conference withSellers, prior to the FTCClosing, and Buyer, after the DOJ or any Closing, agree to cause the Acquired Companies, to execute and deliver such other Governmental Entity ordocuments, in connection with any proceeding by a private partycertificates, with any agreements and other Person, writings and to the extent permitted by the FTC, the DOJ or take such other applicable Governmental Entity actions as may be necessary or other Person, give each other party desirable in order to consummate or implement expeditiously the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionContemplated Transactions.
Appears in 1 contract
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreementherein provided, each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. In furtherance The Company shall use its commercially reasonable efforts to obtain, at its sole expense, all such waivers, consents or approvals from Governmental Authorities or third parties and to give all such notices to Governmental Authorities and third parties, as are required to be listed in Schedule 3.4 hereto; provided that the failure to obtain any such waiver, consent or approval shall not be a condition to the Merger unless specifically listed on Exhibit 6.2(c) hereto. The Parent shall cooperate with the Company in limitation of obtaining all such waivers, consents or approvals, as may be reasonably requested by the foregoingCompany in connection therewith. The Parent shall use its commercially reasonable efforts to obtain, each at its sole expense, all such waivers, consents or approvals from Governmental Authorities or third parties and to give all such notices to Governmental Authorities and third parties, as are required to be listed in Exhibit 6.3(b) hereto. The Company shall cooperate with the Parent in obtaining all such waivers, consents or approvals, as may be reasonably requested by the Parent in connection therewith. Each party shall bear its own costs incurred in connection with obtaining such consents and shall pay its own HSR Act filing fee. Each party hereto agrees to shall make an appropriate filing of a Notification and Report Form filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated hereby as by this Agreement promptly as practicable and in any event within ten (10) business days of after the date hereof and to shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination Act. Without limitation of the applicable foregoing, the Company, Newco and their respective Affiliates shall not extend any waiting period or comparable period under the HSR Act as soon as possibleor enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto. Notwithstanding anything to the contrary in this Agreement, the Parent shall not be obligated to sell or dispose of or hold separately (through a trust or otherwise) any assets or businesses of the Parent, the Company or their respective Affiliates, or otherwise restrict the conduct of the businesses of the Parent, the Company or their respective Affiliates.
(b) In connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which questions the validity or legality of the Merger or any of the other transactions contemplated by this Agreement under the HSR Act hereby or any other Antitrust Lawseeks damages in connection therewith, each of the parties hereto shall agree, subject to reasonable business judgment, to cooperate and use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any defend against such claim, action, suit, investigation or other inquiryproceeding and, including if an injunction or other order is issued in any proceeding initiated by a private partysuch action, (ii) keep the suit or other party informed in all material respects of any material communication received by proceeding, to use reasonable best efforts to have such party frominjunction or other order lifted, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or and to cooperate reasonably regarding any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any impediment to the consummation of the transactions contemplated hereby hereby.
(c) The Company shall give prompt written notice to the Parent and Newco of (i) the occurrence, or failure to occur, of any event which occurrence or failure would cause any representation or warranty of the Company contained in the Merger Documents to be untrue or inaccurate in any material respect at any time from the date hereof to the Effective Time or that will result in the failure to satisfy any of the conditions specified in Article VI and such written notice shall specify the representation or warranty so breached (provided that such notice shall not be deemed to cure the breach of any such representation or warranty or amend and/or supplement the schedule related to such representation or warranty) and (iiiii) subject any failure of the Company to confidentiality obligations of each party comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the Merger Documents.
(d) The Parent or Newco shall give prompt written notice to the otherCompany of (i) the occurrence, permit each other party or failure to review occur, of any event which occurrence or failure would cause any representation or warranty of the Parent or Newco contained in the Merger Documents to be untrue or inaccurate in any material communication given respect at any time from the date hereof to the Effective Time or that will result in the failure to satisfy any of the conditions specified in Article VI and such written notice shall specify the representation or warranty so breached (provided that such notice shall not be deemed to cure the breach of any such representation or warranty or amend and/or supplement the schedule related to such representation or warranty) and (ii) any failure of the Parent or Newco to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it toeither of them under the Merger Documents.
(e) The Company shall use commercially reasonable efforts to cause Ernst & Young LLP to complete, as promptly as practicable, an audit of the Annual Financial Statements in a manner that will result in Ernst & Young LLP issuing an unqualified opinion (the “E&Y Audit Opinion”), and consult with each other in advance of any meeting or conference withupon such completion, the FTCCompany shall promptly deliver such audited Financial Statements with the E&Y Audit Opinion to the Parent (the “Audited Financial Statements”). Following delivery of the Audited Financial Statements to the Parent, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and Company will make available to the extent permitted by Parent and its representatives the FTC, financial records (including the DOJ or such other applicable Governmental Entity or other Person, give each other party work papers of the opportunity to attend Company’s independent accountants) of the Company and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionits Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Webmd Corp /New/)
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreementherein provided, each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. In furtherance and not in limitation Each of the foregoingCompany and Parent and Newco will use their respective reasonable best efforts to obtain consents of all Governmental Authorities and third parties necessary to the consummation of the transactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents shall be borne by Parent, each including the HSR filing fee, and treated in accordance with Section 10.4. Each party hereto agrees to shall make an appropriate filing of a Notification and Report Form filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated hereby as by this Agreement promptly as practicable and in any event within ten (10) business days of after the date hereof and to shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act Act. Without limiting the foregoing, the Company, Parent and Newco shall consult with each other with respect to take all other actions necessary to cause (i) the expiration or advisability of requesting early termination of the applicable waiting period under the HSR Act as soon as possibleAct, and (ii) extending any waiting period or comparable period under the HSR Act, and no such party shall enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto.
(b) In connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which questions the validity or legality of the Merger or any of the other transactions contemplated by this Agreement under the HSR Act hereby or any other Antitrust Lawseeks damages in connection therewith, each of the parties hereto shall agree to cooperate and use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any defend against such claim, action, suit, investigation or other inquiryproceeding and, including if an injunction or other order is issued in any proceeding initiated by a private partysuch action, (ii) keep the suit or other party informed in all material respects of any material communication received by proceeding, to use reasonable best efforts to have such party frominjunction or other order lifted, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or and to cooperate reasonably regarding any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any impediment to the consummation of the transactions contemplated hereby and hereby; provided that in no event shall Parent or any of its Affiliates be required to agree or commit to divest, hold separate, offer for sale, abandon, limit its operation of or take similar action with respect to any assets (iiitangible or intangible) subject to confidentiality obligations or any business interest of each party to the otherit or any of its Affiliates (including, permit each other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference withwithout limitation, the FTC, the DOJ Surviving Corporation or any such other Governmental Entity or, of the Subsidiaries after consummation of the Merger) in connection with or as a condition to receiving the consent or approval of any proceeding by a private partyGovernmental Authority (including, with any other Personwithout limitation, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, under the HSR Act).
(c) The Company shall give prompt written notice to Parent and Newco of (i) the occurrence, or failure to occur, of any event which occurrence or failure would cause any representation or warranty of the Federal Trade Commission ActCompany contained in the Merger Documents to be untrue or inaccurate in any material respect at any time from the date hereof to the Effective Time or that will result in the failure to satisfy any of the conditions specified in Article VI and such written notice shall specify the representation or warranty so breached (provided that such notice shall not be deemed to cure the breach of any such representation or warranty or amend and/or supplement the schedule related to such representation or warranty) and (ii) any failure of the Company to comply with or satisfy any covenant, as amendedcondition or agreement to be complied with or satisfied by it under the Merger Documents.
(d) Parent or Newco shall give prompt written notice to the Company of (i) the occurrence, or failure to occur, of any event which occurrence or failure would cause any representation or warranty of Parent or Newco contained in the Merger Documents to be untrue or inaccurate in any material respect at any time from the date hereof to the Effective Time or that will result in the failure to satisfy any of the conditions specified in Article VI and all other federalsuch written notice shall specify the representation or warranty so breached (provided that such notice shall not be deemed to cure the breach of any such representation or warranty or amend and/or supplement the schedule related to such representation or warranty) and (ii) any failure of Parent or Newco to comply with or satisfy any covenant, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed condition or intended agreement to prohibit, restrict be complied with or regulate actions having satisfied by either of them under the purpose or effect of monopolization or restraint of trade or lessening of competitionMerger Documents.
Appears in 1 contract
Samples: Merger Agreement (Nautilus, Inc.)
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreementherein provided, each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. In furtherance and not in limitation Each of the foregoing, Company and Newco will use their respective reasonable best efforts to obtain consents of all Governmental Authorities and third parties necessary to the consummation of the transactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents shall be borne by Newco and treated in accordance with Section 9.5; except that each party shall pay their own HSR Act filing fee; provided, however, if the Agreement shall be terminated in accordance with Section 7.1, such costs shall be borne jointly by Newco and the Company. Each party hereto agrees to shall make an appropriate filing of a Notification and Report Form filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated hereby as by this Agreement promptly as practicable and in any event within ten (10) business days of after the date hereof and to shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination Act. Without limitation of the applicable foregoing, the Company, Newco and their respective Affiliates shall not extend any waiting period or comparable period under the HSR Act as soon as possibleor enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other party hereto.
(b) In Without limiting the generality of the undertakings of subsection (a) of this Section 5.5 and subject to appropriate confidentiality protections, the Company and Newco shall each furnish to the other such necessary information and reasonable assistance as the other party may request in connection with the efforts referenced foregoing and shall each promptly provide counsel for the other party with copies of all filings made by such party, and all correspondence between such party (and its advisors) with any Governmental Authority and any other information supplied by such party and such party’s Affiliates to a Governmental Authority in Section 6.7(a) to obtain all requisite approvals connection with this Agreement and authorizations for the transactions contemplated hereby.
(c) In the event any claim, action, suit, investigation or other proceeding by this Agreement under any Governmental Authority or other Person is commenced which questions the HSR Act validity or legality of the Merger or any other Antitrust Law, each of the other transactions contemplated hereby or seeks damages in connection therewith, the parties hereto shall agree to cooperate and use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any defend against such claim, action, suit, investigation or other inquiryproceeding and, including if an injunction or other order is issued in any proceeding initiated by a private partysuch action, (ii) keep the suit or other party informed in all material respects of any material communication received by proceeding, to use reasonable best efforts to have such party frominjunction or other order lifted, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or and to cooperate reasonably regarding any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any impediment to the consummation of the transactions contemplated hereby hereby.
(d) Each party shall give prompt written notice to the other of (i) the occurrence, or failure to occur, of any event which occurrence or failure would cause any representation or warranty of the Company or Newco, as the case may be, contained in the Merger Documents to be untrue or inaccurate in any material respect at any time from the date hereof to the Effective Time or that will result in the failure to satisfy any of the conditions specified in Article VI and such written notice shall specify the representation or warranty so breached and (iiiii) subject any failure of the Company or Newco, as the case may be, to confidentiality obligations of each party comply with or satisfy any covenant, condition or agreement to the other, permit each other party to review any material communication given be complied with or satisfied by it to, and consult with each other in advance under the Merger Documents. The Company shall give prompt written notice to Newco of any meeting development which has or conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by could reasonably be expected to have a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionMaterial Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Sealy Corp)
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreementherein provided, each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. In furtherance The Company shall reasonably cooperate with Parent and not its financing sources, the rating agencies and their respective agents and representatives in order to assist Parent in connection with the preparation of standard confidential memorandum and related materials, providing customary certification to placement agents and auditors, causing its management to participate in any “road shows” or lenders meetings, marketing any securities and syndicating bank loans, and all other documentation reasonably required for Parent’s financing arrangements, and using reasonable best efforts to cause the Company’s accountants to provide comfort letters consistent with SAS 72 (as amended), including without limitation standard negative assurance on any interim period or pro forma financial statements, to any underwriters or initial purchasers involved in such financing. Each of the foregoingCompany and Parent and Newco will use their respective reasonable best efforts to obtain consents of all Governmental Authorities and third parties necessary to the consummation of the transactions contemplated by this Agreement. All filing fees incurred in connection with obtaining such consents from Governmental Authorities, each including the HSR Act filing fee, shall be borne by the Parent and treated in accordance with Section 10.4. Each party hereto agrees shall use reasonable best efforts to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable, and in any event within 7 Business Days of the date hereof, and any similar foreign antitrust or competition laws applicable to such party with respect to the transactions contemplated hereby by this Agreement as promptly as practicable practicable, and in any event within ten (10) business days 13 Business Days of the date hereof hereof, and to shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration any similar applicable foreign antitrust or termination competition laws. Without limitation of the applicable foregoing, the Company, Newco and their respective affiliates shall not extend any waiting period or comparable period under the HSR Act as soon as possibleor similar foreign antitrust or competition laws or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto. Each party shall (A) promptly notify the other party of any written communication to that party from the FTC, the Antitrust Division or any other Governmental Authority and, subject to applicable law, permit the other party to review in advance any proposed written communication to any of the foregoing and (B) furnish the other party with copies of all correspondence, filings, and written communications (and memoranda setting forth the substance thereof) between them and their respective affiliates on the one hand, and any Governmental Authority on the other hand, with respect to this Agreement and the Merger.
(b) In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which questions the validity or legality of the Merger or any of the other transactions contemplated hereby or seeks damages in connection with therewith, the parties agree to cooperate and use reasonable best efforts referenced to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in Section 6.7(aany such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the transactions contemplated hereby.
(c) Each party shall give prompt written notice to obtain all requisite approvals the other of (i) the occurrence, or failure to occur, of any event which occurrence or failure would cause any representation or warranty of the Company or Parent and authorizations for Newco, as the case may be, contained in the Merger Documents to be untrue or inaccurate in any respect that would reasonably be expected to have a Material Adverse Effect, or a material adverse effect on the consummation of the transactions contemplated by this Agreement Agreement, at any time from the date hereof to the Effective Time and such written notice shall specify the representation or warranty so breached and (ii) any failure of the Company or Parent and Newco, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the HSR Act or any other Antitrust Law, each of the parties hereto Merger Documents.
(d) Parent and Newco shall use its reasonable best efforts to satisfy the requirements of the Commitment Letters and to obtain the funding contemplated by and on the terms contained in the Commitment Letters, or if any Commitment Letter is terminated or such funds shall not otherwise be available, shall use reasonable best efforts to obtain an alternative source of debt financing on substantially similar terms in order to consummate the transactions contemplated hereby. Following the date hereof, any amendment, termination or cancellation of the Commitment Letters or any information known to Parent or Newco which makes it unlikely to obtain the financing set forth in the Commitment Letters shall be promptly disclosed to the Company. Neither Parent nor Newco shall, directly or indirectly, intentionally induce or encourage the exercise by the lenders party to the Commitment Letters of any right not to fund any of the financing provided for by the Commitment Letters; provided, that nothing shall prevent Parent or Newco from providing information about the Company and its Subsidiaries as requested by such lenders or from communicating with such lenders about the Company and its Subsidiaries generally and about any information provided to such lender. If such lenders fail to fund any such financing, Parent and Newco shall request such lenders to communicate in writing directly to the Company the circumstances and bases therefor.
(e) The Surviving Corporation will pay to each Former Holder an amount equal to such Holder’s Ownership Percentage of any Carryback Tax Refund in excess of the sum of (i) cooperate the amount deposited in all respects with each other in connection with any filing or submission the Indemnity Escrow Account, net of applicable withholding taxes, if any, and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party informed in all material respects amount of any material communication received Carryback Tax Refund required to be paid directly to the Buyer Indemnitees pursuant to the Escrow Agreement by such party from, wire transfer or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division delivery of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private partyimmediately available funds, in each case, regarding any within three Business Days after the date on which Carryback Tax Refund is received; provided, however, that no Carryback Tax Refund in respect of foreign income taxes shall be paid to the Former Holders except to the extent the aggregate Carryback Tax Refunds in respect of foreign income taxes since the Closing Date exceed the amount of the transactions contemplated hereby current foreign income tax assets included in the Final Statement of Purchase Price. The Surviving Corporation shall (i) file IRS Form 1139 within 60 days of the completion of audited financial statements for the taxable year that includes the Closing Date, to obtain Carryback Tax Refunds from applicable U.S. Governmental Authorities, (ii) shall not elect to forgo any carryback period pursuant to Section 172(b)(3) of the Code and any state or local equivalent (provided that the Surviving Corporation may so elect where the amount of any refund that could be obtained through a carryback would not be greater than $25,000) with respect to net operating losses for the taxable year that includes the Closing Date and (iii) subject if the U.S. federal consolidated income tax return for the Surviving Corporation for the 2005 taxable year is not filed on or prior to confidentiality obligations May 31, 2006, shall make all payments on account of each party Carryback Tax Refunds attributable to refunds or reductions in tax on account of estimated income tax payments made in 2005 on or prior the otherdate that is three Business Days after May 31, permit each other party to review any material communication given by it to, and consult with each other 2006 as if such refunds had been received or such reductions had occurred. The parties agree in advance good faith that the mechanics for obtaining Carryback Tax Refunds in respect of any meeting or conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and foreign income taxes shall follow comparable procedures to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionpracticable.
Appears in 1 contract
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreement, each of Parent and the parties hereto Company shall use its their 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 laws Applicable Law to consummate the transactions contemplated by this Agreement as soon as practicable, including (i) preparing and regulations filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement. .
(b) In furtherance and not in limitation of the foregoing, each party hereto of Parent and the Company agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act Act, an appropriate filing or application pursuant to the Canadian Competition Act, and any filings or applications required pursuant to any other applicable Competition Law with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten (10) business days of after the date hereof hereof.
(c) Each of Parent and the Company agree to (i) supply as promptly as practicable any additional information and documentary material that may be reasonably requested by any Governmental Authority pursuant to the HSR Act, the Canadian Competition Act, any other applicable Competition Law and the Investment Canada Act and (ii) to take all consult and cooperate with the other actions necessary party with respect to cause (including reviewing material correspondence before submitting same to any Governmental Authority or that is received from any Governmental Authority), and to permit the expiration or termination of other party to be present at conferences and meetings for the applicable waiting period purpose of, obtaining clearance under the HSR Act as soon as possibleAct, the Canadian Competition Act, any other applicable Competition Law and the Investment Canada Act.
(bd) In connection Notwithstanding anything in this Agreement to the contrary, if any objections are asserted with respect to the transactions contemplated hereby under the HSR Act, the Canadian Competition Act or any other applicable Competition Law, or if any suit, action or proceeding is instituted or threatened by any Governmental Authority challenging any of the transactions contemplated hereby as violative of the HSR Act, the Canadian Competition Act or any other applicable Competition Law, each of Parent and the Company shall use its best efforts referenced to resolve such objections, suit, action or proceeding so as to allow the Effective Time to occur prior to the End Date. Without limiting the generality of the foregoing, in Section 6.7(a) exercising its best efforts, and in exercising its best efforts to obtain Investment Canada Act Approval, Parent shall, and shall cause its Subsidiaries and controlled Affiliates to, take all requisite approvals necessary action, including agreeing to hold separate or to divest any of the businesses or properties or assets of Parent or any of its Affiliates (including any assets acquired or to be acquired by Parent pursuant to the transactions contemplated hereby), to terminate any existing relationships and authorizations for contractual rights and obligations, and to enter into licensing arrangements or undertakings, as may be required (i) by the applicable Governmental Authority in order to resolve such objections that such Governmental Authority may have to such transactions under the HSR Act, the Canadian Competition Act or any other applicable Competition Law, (ii) by any domestic or foreign court or other tribunal, in any suit, action or proceeding brought by any Governmental Authority challenging such transactions as violative of the HSR Act, the Canadian Competition Act or any other applicable Competition Law, in order to resolve such objections, avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement under or (iii) to obtain Investment Canada Act Approval, so as to allow the HSR Act Effective Time to occur prior to the End Date; provided, however, that the Parent may expressly condition any such sale, holding separate or other disposal, and any other Antitrust Lawagreement to take any such action or to conduct its business in any manner, each upon consummation of the parties hereto shall use its best efforts to (i) cooperate in all respects with each other in connection with any filing or submission Arrangement and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other transactions contemplated hereby. If any suit, action or proceeding is instituted or threatened by any private party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding challenging any of the transactions contemplated hereby and (iii) subject to confidentiality obligations as violative of each party to the other, permit each other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Canadian Competition Act or any other applicable Competition Law, each of Parent and the Company shall contest such suit, action or proceeding to the fullest extent permitted by Applicable Law.
(e) From the date of this Agreement until the Effective Date neither Parent nor the Company will enter into or consummate any acquisition or license agreement which would present a material risk of making it materially more difficult to obtain any approval or authorization required in connection with the transactions contemplated herein with respect to the HSR Act, the Canadian Competition Act or any other applicable Competition Law.
(f) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to the Arrangement, no party or its Affiliates shall be required to pay or commit to pay to such Person any cash or other consideration, make any commitment or to incur any liability or other obligation (provided, however, that such party shall give the other parties hereto the opportunity to make such payments); provided, however, this in no way limits the obligations of Parent to hold separate or to divest any of the businesses or properties or assets of Parent or any of its Affiliates (including any assets acquired or to be acquired by Parent pursuant to the transactions contemplated hereby), to terminate any existing relationships and contractual rights and obligations and to enter into licensing arrangements or commitments, obligations or liabilities in respect of undertakings, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionset forth above in Section 7.01(d).
Appears in 1 contract
Samples: Arrangement Agreement (Ipsco Inc)
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreement, each of the parties hereto shall Buyer and Seller will use its their 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 laws and regulations to consummate the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten (10) business days of the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act as soon as possible.
(b) In connection with the efforts referenced in Section 6.7(a7.01(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, each of the parties hereto Buyer and Seller shall use its best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity Authority and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any of the transactions contemplated hereby and (iii) subject to confidentiality obligations of each party to permit the other, permit each other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental Entity Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity Authority or other Person, give each the other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, (A) "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitioncompetition and (B) "Governmental Authority" means any federal, state, or local government or any court, administrative agency or commission or other governmental agency or authority.
Appears in 1 contract
Samples: Stock Purchase Agreement (Borg Warner Security Corp)
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreement, each of the parties hereto shall use its 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 laws and regulations to consummate the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten (10) business days of the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as possible.
(b) In connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, each of the parties hereto shall use its best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any of the transactions contemplated hereby and (iii) subject to confidentiality obligations of each party to the other, permit each other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
Appears in 1 contract
Samples: Merger Agreement (Burns International Services Corp)
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreementherein provided, each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. In furtherance Each of the Company and not in limitation Parent and Newco will use their respective reasonable best efforts to obtain consents of all Governmental Authorities and third parties necessary to the consummation of the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, each in connection with obtaining a consent from the landlord of the Company’s Colton, California leased property, the Company shall obtain a one year extension of the lease on terms substantially similar to the Company’s current lease, including the lease of the additional space described in paragraph 1 of Section 3.4 of the Disclosure Schedule. All costs incurred in connection with obtaining such consents shall be borne by the Company and treated in accordance with Section 10.4, except that Parent shall pay any HSR Act filing fees. Each party hereto agrees to shall make an appropriate filing of a Notification and Report Form filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated hereby as by this Agreement promptly as practicable and in any event within ten (10) business days of after the date hereof and to shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination Act. Without limitation of the applicable foregoing, the Company, Newco and their respective Affiliates shall not extend any waiting period or comparable period under the HSR Act as soon as possibleor enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto.
(b) In connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced which questions the validity or legality of the Merger or any of the other transactions contemplated by this Agreement under the HSR Act hereby or any other Antitrust Lawseeks damages in connection therewith, each of the parties hereto shall agree to cooperate and use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any defend against such claim, action, suit, investigation or other inquiryproceeding and, including if an injunction or other order is issued in any proceeding initiated by a private partysuch action, (ii) keep the suit or other party informed in all material respects of any material communication received by proceeding, to use reasonable best efforts to have such party frominjunction or other order lifted, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or and to cooperate reasonably regarding any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any impediment to the consummation of the transactions contemplated hereby hereby.
(c) Each party shall give prompt written notice to the other of (i) the occurrence, or failure to occur, of any event which occurrence or failure would cause any representation or warranty of the Company or Parent and Newco as the case may be, contained in the Merger Documents to be untrue or inaccurate in any material respect at any time from the date hereof to the Effective Time or that will result in the failure to satisfy any of the conditions specified in Article VI and (iiiii) subject any failure of the Company or Parent and Newco, as the case may be, to confidentiality obligations of each party comply with or satisfy any covenant, condition or agreement to the other, permit each other party to review any material communication given be complied with or satisfied by it to, and consult with each other in advance of any meeting or conference with, under the FTC, the DOJ or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Person, give each other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionMerger Documents.
Appears in 1 contract
Best Efforts; Further Assurances. (a) Subject to the terms -------------------------------- and conditions of this Agreement, each of the parties hereto shall Buyer Parties and Seller will use its best efforts their respective Best Efforts to take, or cause to be takentaken (including by causing any Affiliates to take actions), all actions and to do, or cause to be done, all things necessary or desirable under Applicable Laws to consummate the Contemplated Transactions, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement. In furtherance and not in limitation Contemplated Transactions; provided, that none of the foregoingBuyer Parties or any of their respective Affiliates or Representatives shall have any communication with any Governmental Authority regarding any Material Contract without the prior express written consent of Seller.
(a) Except as otherwise prohibited by Applicable Law, each party Party hereto agrees to make an appropriate filing shall promptly inform the other of any communication from any Governmental Authority regarding any of the Contemplated Transactions. If any Party or affiliate thereof receives a Notification and Report Form pursuant to the HSR Act request for additional information or documentary material from any such Governmental Authority with respect to the transactions contemplated hereby as promptly as practicable and Contemplated Transactions, then such Party will endeavor in any event within ten (10) business days of the date hereof and good faith to supply as promptly as practicable any additional information and documentary material that may make, or cause to be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act made, as soon as possiblereasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request.
(b) In connection Seller and the Buyer Parties shall, with respect to a threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, each ability of the parties Parties hereto shall to consummate the Contemplated Transactions, use its best efforts their respective Best Efforts to prevent the entry, enactment or promulgation thereof, as the case may be.
(ic) cooperate in all respects with each other in connection with any filing or submission Seller and in connection with any investigation or other inquirythe Buyer Parties agree, including any proceeding initiated by a private partyand Seller, (ii) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case, regarding any of the transactions contemplated hereby and (iii) subject to confidentiality obligations of each party prior to the other, permit each other party to review any material communication given by it toClosing, and consult with each other in advance of any meeting or conference withthe Buyer Parties, after the FTCClosing, agree to cause the DOJ or any Acquired Companies, to execute and deliver such other Governmental Entity ordocuments, in connection with any proceeding by a private partycertificates, with any agreements and other Person, writings and to the extent permitted by the FTC, the DOJ or take such other applicable Governmental Entity actions as may be necessary or other Person, give each other party desirable in order to consummate or implement expeditiously the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competitionContemplated Transactions.
Appears in 1 contract
