Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use their best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps (subject to Section 6.06(g)) as may be necessary to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubt, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including, without limitation, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or the other transactions contemplated by this Agreement, use their best efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this Agreement. Nothing herein shall limit or affect the Company's taking actions specifically permitted by Section 6.05(b) and (c). (b) In furtherance and without limiting the above provisions, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement. (c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. (d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement. (e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request. (f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06. (g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser or Parent to agree to any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or any private party with respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or (ii) the requirement of divestitures or the submission of commitments to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitment.
Appears in 1 contract
Sources: Merger Agreement (Block Drug Co Inc)
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use their its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger Merger, and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities Persons and the making of all necessary registrations and filings (including filings with Governmental EntitiesPersons, if any) and the taking of all reasonable steps (subject to Section 6.06(g)) as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by by, any Governmental Entity and for the avoidance of doubt, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome ConditionPerson, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of any of the transactions contemplated herebyby this Agreement, including, without limitation, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity Person vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoingforegoing and to the extent possible under applicable law, the Company Company, Parent and its Board Sub and their respective Boards of Directors shall, if any shall (x) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or any of the other transactions contemplated by this Agreement, use their best efforts other than any such statutes or regulations the sole effect of which is to require a filing or notice, provided that the Company, Parent and Sub, as applicable, shall take all action necessary to comply with such filing and notice requirements, and (y) if any state takeover statute or similar statute or regulation becomes applicable to the Offer, the Merger, this Agreement or any other transaction contemplated by this Agreement, take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this Agreement. Nothing herein shall limit require Parent or affect the Company's taking actions specifically permitted by Section 6.05(b) and (c)Sub to accept any financing.
(b) In furtherance The Company shall give prompt notice to Parent, and without limiting Parent or Sub shall give prompt notice to the above provisionsCompany, each of (i) any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, including if necessary, by amendment to the Company Disclosure Letter (which amendments shall not affect or amend the representations and warranties of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreementset forth herein), and (ii) file any failure by it to comply with the European Commission or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with ; provided, however, that no such notification shall impair or in any way affect the relevant Governmental Entities in other jurisdictionsrepresentations, all other antitrust filingswarranties, if any, required for consummation covenants or agreements of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant parties or the conditions to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements obligations of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary parties under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser or Parent to agree to any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or any private party with respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or (ii) the requirement of divestitures or the submission of commitments to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitment.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use their best commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this AgreementTransactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps (subject to Section 6.06(g)) as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubtby, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated herebyTransactions, including, without limitation, including any proceeding in connection with Appraisal Shares or lawsuits and proceedings seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Transactions and to fully carry out the purposes of, of this Agreement. In connection with and without limiting the foregoing, the Company and its the Company Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, any Transaction or this Agreement and (ii) if any state takeover statute or the other transactions contemplated by similar statute or regulation becomes applicable to this Agreement, use their best efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this AgreementTransactions. Nothing herein The Company shall limit use its commercially reasonable efforts to take, or affect cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in the Company's taking actions specifically permitted by Section 6.05(b) and (c)obtaining of any employment agreements that Parent requests.
(b) In furtherance and without limiting the above provisionsThe Company shall give prompt notice to Parent, each of the Company and Parent shallor Merger Sub shall give prompt notice to the Company, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required any representation or warranty made by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties it contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser that is qualified as to materiality becoming untrue or Parent to agree to inaccurate in any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity respect or any private party with such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or (ii) the requirement failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of divestitures the parties or the submission of commitments conditions to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning obligations of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitmentparties under this Agreement.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, unless, to the extent permitted by Section 5.02(c), the Company Board approves or recommends a Superior Company Proposal in compliance with Section 5.02, each of the parties agrees to shall use their its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this AgreementMerger, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps (subject to Section 6.06(g)) as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubtby, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesparties (although, in the case of the Company, any material financial or other concession offered in consideration of such a consent, approval or waiver shall be subject to the written prior consent of Parent, not to be unreasonably withheld), (iii) the defending of any lawsuits or other legal proceedingsLegal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated herebyMerger, including, without limitation, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Merger and to fully carry out the purposes of, of this Agreement. In connection with and without limiting the foregoing, the Company and its the Company Board of Directors shall, if any shall (x) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, Merger or this Agreement and (y) if any state takeover statute or the other transactions contemplated by similar statute or regulation becomes applicable to this Agreement, use their best efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the OfferMerger. Notwithstanding the foregoing, the Merger Company and the other transactions contemplated by its Representatives shall not be prohibited under this Agreement. Nothing herein shall limit or affect the Company's Section 6.03(a) from taking actions specifically any action permitted by Section 6.05(b) and (c)5.02.
(b) In furtherance and without limiting the above provisionsThe Company shall give prompt notice to Parent, each of the Company and Parent shallor Sub shall give prompt notice to the Company, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required any representation or warranty made by the HSR Act (but it contained in no event later than ten (10) Business Days after the date of this Agreement), Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect or (ii) file the failure by it to comply with the European Commission or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with ; provided, however, that no such notification shall affect the relevant Governmental Entities in other jurisdictionsrepresentations, all other antitrust filingswarranties, if any, required for consummation covenants or agreements of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant parties or the conditions to the HSR Act obligations of the parties under this Agreement.
(c) Nothing in Section 6.03(a) shall require Parent to dispose of any of its assets or to limit its freedom of action with respect to any of its businesses, or to consent to any disposition of the Company’s assets or limits on the Company’s freedom of action with respect to any of its businesses, or to commit or agree to any of the foregoing, and nothing in Section 6.03(a) shall authorize the EC Company to commit or agree to any of the foregoing, to obtain any consents, approvals, permits or authorizations to remove any impediments to the Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of relating to the HSR Act, the EC Merger Regulation, the Canadian Investment Regulation and or other relevant law antitrust, competition or regulation. Each of premerger notification, trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the Company and Parent shall furnish entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding relating to Antitrust Laws, other than dispositions, limitations or consents, commitments or agreements with respect to the other Company’s businesses, assets or operations that in each such necessary information and reasonable assistance as the other case may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, be conditioned upon the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private partyMerger, is instituted (or threatened conducted with Parent’s prior written consent, not to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable lawunreasonably withheld, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit has not had and is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall not reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser or Parent to agree to any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or any private party with respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or (ii) the requirement of divestitures or the submission of commitments to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), wouldexpected, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Company Material Adverse Effect Effect.
(d) To the extent permitted by applicable Law: (i) the parties shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with any analyses, appearances, 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 of the Antitrust Laws, (ii) each party shall notify the other promptly upon the receipt of any comments from any official of a Governmental Entity in connection with any filings made pursuant to any Antitrust Law or any request by such official for an amendment or supplement to any filings made pursuant to, or information provided to comply with, applicable Law and (iii) to the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any substantive meeting or a Material Adverse Effect on the Parent; PROVIDEDdiscussion, HOWEVEReither in person or by telephone, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to with any Governmental Entity including commitments in connection with the transactions contemplated by this Agreement unless it first consults with the other party and, to make divestitures that wouldthe extent not prohibited by such Governmental Entity, individually or in gives the aggregate, had the same been in effect or have been completed by, or complied with from other party an opportunity to attend and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitmentparticipate.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, after the expiration of the Inspection Period each of Buyer, Acquisition Sub and the parties Company agrees to use their 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 fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps (subject to Section 6.06(g)) as may be necessary to obtain an approval, waiver or exemption from, or to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubtby, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Merger, this Agreement or the consummation of any of the other transactions contemplated hereby, including, without limitation, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed reversed, and (iviii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, by and to fully carry out the purposes of, of this Agreement. Buyer shall be responsible for obtaining all necessary consents, approvals, waivers or exemptions from non-governmental third parties under the Company’s loan, management and franchise agreements listed on Schedule 5.3(a) to the Company’s Disclosure Letter (including the payment by Buyer of all fees and expenses required in connection with such loan, management and franchise agreements), such consents, approvals, waivers or exemptions to be in form reasonably satisfactory to Buyer, and the Company shall assist and cooperate with Buyer in connection with obtaining such consents, approvals, waivers or exemptions, only to the extent that the Company does not incur any material cost or expense associated with such assistance or cooperation. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if shall (i) take all action necessary so that no “fair price,” “business combination,” “moratorium,” “control share acquisition” or any state other anti-takeover statute or similar statute enacted under state or federal laws of the United States or similar statute or regulation (a “Takeover Statute”) is or becomes applicable to the Offer, the Merger, this Agreement or any of the other transactions contemplated by hereby and (ii) if any Takeover Statute becomes applicable to the Merger, this Agreement, use their best efforts to ensure that the Offer, the Merger and or any of the other transactions contemplated by this Agreement hereby, take all action necessary so that the Merger may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation Takeover Statute on the Offer, the Merger and the other transactions contemplated by this Agreement. Nothing herein shall limit or affect the Company's taking actions specifically permitted by Section 6.05(b) and (c).
(b) In furtherance and without limiting the above provisions, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser or Parent to agree to any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or any private party with respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" .
(b) The Company shall give prompt notice to Buyer and "Unduly Burdensome Commitment" Acquisition Sub, and Buyer and Acquisition Sub shall mean give prompt notice to the Company, if (i) the imposition of conditions any representation or the submission of commitments warranty made by it contained in this Agreement that is qualified as to materiality becomes untrue or inaccurate in any Governmental Entity material respect or any such representation or warranty that is not so qualified becomes untrue or inaccurate in any respect or (ii) it fails to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the requirement representations, warranties, covenants or agreements of divestitures the parties or the submission of commitments conditions to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning obligations of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitmentparties under this Agreement.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this AgreementProposal, each of the parties agrees to use their its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger Merger, and the other transactions contemplated by this Agreementthe Operative Agreements, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps (subject to Section 6.06(g)) as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubtby, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this any Operative Agreement or the consummation of any of the transactions contemplated herebyby the Operative Agreements, including, without limitation, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreementthe Operative Agreements. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this any Operative Agreement or any of the other transactions contemplated by this the Operative Agreements and (ii) if any state takeover statute or similar statute or regulation becomes applicable to the Offer, the Merger, any Operative Agreement or any other transaction contemplated by any Operative Agreement, use their best efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement the Operative Agreements may be consummated as promptly as practicable on the terms contemplated by this Agreement the Operative Agreements and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this Agreementthe Operative Agreements. Nothing herein Notwithstanding the foregoing, the Board of Directors of the Company shall limit or affect the Company's not be prohibited from taking actions specifically any action permitted by Section 6.05(b) and (c5.02(b).
(b) In furtherance and without limiting the above provisionsThe Company shall give prompt notice to Parent, each of the Company and Parent shallor Sub shall give prompt notice to the Company, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required any representation or warranty made by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties it contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser that is qualified as to materiality becoming untrue or Parent to agree to inaccurate in any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity respect or any private party with such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or (ii) the requirement failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of divestitures the parties or the submission of commitments conditions to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning obligations of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitmentparties under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Revco D S Inc)
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use their commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps (subject to Section 6.06(g)) as may be necessary to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubt, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary material consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including, without limitation, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and its the Company Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or the other transactions contemplated by this Agreement, use their commercially reasonable best efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this Agreement. Nothing herein shall limit or affect the Company's taking actions specifically permitted by Section 6.05(b) and (c).
(b) In furtherance and without limiting the above provisions, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections Section 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable lawLaw, each of the parties shall cooperate in all respects with each other and use its respective commercially reasonable best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(ec) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents Schedule 14D-9 and the Schedule 14D-1Offer Documents, respectively, which the respective party responsible therefor shall reasonably request.
(fd) The existence Notwithstanding anything to the contrary in Section 6.06(a) or (b), (i) neither Parent nor any of its Subsidiaries shall be required to divest any of their respective businesses, product lines or assets, (ii) neither Parent nor any of its Subsidiaries shall be required to take or agree to take any other action or agree to any limitation that could reasonably be expected to have a Material Adverse Effect on Parent, (iii) neither the Company nor its Subsidiaries shall be required to divest any of their respective businesses, product lines or assets, or to take or agree to take any other action or agree to any limitation that could reasonably be expected to have a Material Adverse Effect on the Surviving Corporation or, prior to the Closing, the Company, (iv) no party shall be required to agree to the imposition of or to comply with, any condition, obligation or restriction on Parent or any of its Subsidiaries or on the Surviving Corporation or any of its Subsidiaries of the type referred to in subclause (vi) or (vii) of clause (a) of Annex A, and (v) neither Parent nor Purchaser shall be required to waive any of the conditions to the Offer set forth in Section 7.01 Annex A and clauses (a) and (b) none of ANNEX A the Parent, Purchaser or the Company shall not limit or diminish Parent's or Purchaser's obligations pursuant be required to this Section 6.06 or relieve Parent or Purchaser waive any of any liability or damages that may result from its breach of its obligations under this Section 6.06the conditions to the Merger set forth in Article 7.
(ge) Nothing in this Section 6.06 Each of the Company and Parent shall promptly notify the other of:
(i) any representation or elsewhere warranty made by it contained in this Agreement shall require Purchaser that is qualified as to materiality becoming untrue or Parent to agree to inaccurate in any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity respect or any private party with such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect at or prior to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or Effective Time;
(ii) the requirement of divestitures failure by it to perform, or the submission of commitments to any Governmental Entity involving the making of divestitures thatcomply with, in the case any material respect, any of clauses (i) and (ii)its obligations, wouldcovenants, or agreements contained in this Agreement, which failure, either individually or in the aggregate, if offered has had or complied withwould reasonably be expected to have a Material Adverse Effect on it;
(iii) the Company obtaining knowledge of a material breach by Parent, or Parent obtaining knowledge of a material breach by the Company, of their respective representations, warranties or covenants hereunder of which the breaching party has not already given notice pursuant to clauses (i) or (ii) above;
(iv) any notice or other communication from any third party alleging that the consent of such third party is or may be required in connection with the transactions contemplated by this Agreement, except to the extent such notice requirement is expressly disclosed in the Company Disclosure Memorandum;
(v) any notice or other communication from any Governmental Entity in connection with the transactions contemplated by this Agreement;
(vi) any actions, suits, claims, investigations, orders, decrees, complaints or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company, Parent or any of their respective Subsidiaries that relate to the consummation of the transactions contemplated by this Agreement; or
(vii) the occurrence of any other event which would reasonably be likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that cause any conditions or requirements for divestitures or the commitments submitted condition set forth in Annex A hereto to be unsatisfied in any Governmental Entity including commitments material respect at any time prior to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning consummation of the most recently concluded fiscal year Offer; provided, however, that the delivery of any notice pursuant to this Section 6.06(e) shall not limit or otherwise affect the Company or remedies available hereunder to the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitmentparty receiving such notice.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use their best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps (subject to Section 6.06(g)) as may be necessary to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubt, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including, without limitation, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Target Company and its Board board of Directors directors and the Merger Sub and its board of directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or the other transactions contemplated by this Agreement, use their best efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this Agreement. Nothing herein shall limit or affect the Target Company's taking actions specifically permitted by Section 6.05(b5.11(b) and (c).
(b) In furtherance and without limiting the above provisions, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections 6.06(aSection 5.12(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(dc) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Target Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request.
(fd) The existence of the conditions set forth in Section 7.01 6.01 and clauses (a) and (b) of ANNEX A Section 6.03 shall not limit or diminish Parent's or PurchaserMerger Sub's obligations pursuant to this Section 6.06 5.12 or relieve Parent or Purchaser Merger Sub of any liability or damages that may result from its breach of its obligations under this Section 6.065.12.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser or Parent to agree to any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or any private party with respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or (ii) the requirement of divestitures or the submission of commitments to any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures or the commitments submitted to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitment.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use their commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps (subject to Section 6.06(g)) as may be necessary to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubt, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary material consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including, without limitation, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and its the Company Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or the other transactions contemplated by this Agreement, use their commercially reasonable best efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this Agreement. Nothing herein shall limit or affect the Company's taking actions specifically permitted by Section 6.05(b) and (c).
(b) In furtherance and without limiting the above provisions, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required by the HSR Act (but in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission or any other Governmental Entity, and shall comply promptly with any such inquiry or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections Section 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable lawLaw, each of the parties shall cooperate in all respects with each other and use its respective commercially reasonable best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(ec) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents Schedule 14D-9 and the Schedule 14D-1Offer Documents, respectively, which the respective party responsible therefor shall reasonably request.
(fd) The existence Notwithstanding anything to the contrary in Section 6.06(a) or (b), (i) neither Parent nor any of its Subsidiaries shall be required to divest any of their respective businesses, product lines or assets, (ii) neither Parent nor any of its Subsidiaries shall be required to take or agree to take any other action or agree to any limitation that could reasonably be expected to have a Material Adverse Effect on Parent, (iii) neither the Company nor its Subsidiaries shall be required to divest any of their respective businesses, product lines or assets, or to take or agree to take any other action or agree to any limitation that could reasonably be expected to have a Material Adverse Effect on the Surviving Corporation or, prior to the Closing, the Company, (iv) no party shall be required to agree to the imposition of or to comply with, any condition, obligation or restriction on Parent or any of its Subsidiaries or on the Surviving Corporation or any of its Subsidiaries of the type referred to in subclause (vi) or (vii) of clause (a) of ANNEX A, and (v) neither Parent nor Purchaser shall be required to waive any of the conditions to the Offer set forth in Section 7.01 and clauses (a) and (b) of ANNEX A and none of the Parent, Purchaser or the Company shall not limit or diminish Parent's or Purchaser's obligations pursuant be required to this Section 6.06 or relieve Parent or Purchaser waive any of any liability or damages that may result from its breach of its obligations under this Section 6.06the conditions to the Merger set forth in Article 7.
(ge) Nothing in this Section 6.06 Each of the Company and Parent shall promptly notify the other of:
(i) any representation or elsewhere warranty made by it contained in this Agreement shall require Purchaser that is qualified as to materiality becoming untrue or Parent to agree to inaccurate in any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity respect or any private party with such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect at or prior to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity or Effective Time;
(ii) the requirement of divestitures failure by it to perform, or the submission of commitments to any Governmental Entity involving the making of divestitures thatcomply with, in the case any material respect, any of clauses (i) and (ii)its obligations, wouldcovenants, or agreements contained in this Agreement, which failure, either individually or in the aggregate, if offered has had or complied withwould reasonably be expected to have a Material Adverse Effect on it;
(iii) the Company obtaining knowledge of a material breach by Parent, or Parent obtaining knowledge of a material breach by the Company, of their respective representations, warranties or covenants hereunder of which the breaching party has not already given notice pursuant to clauses (i) or (ii) above;
(iv) any notice or other communication from any third party alleging that the consent of such third party is or may be required in connection with the transactions contemplated by this Agreement, except to the extent such notice requirement is expressly disclosed in the Company Disclosure Memorandum;
(v) any notice or other communication from any Governmental Entity in connection with the transactions contemplated by this Agreement;
(vi) any actions, suits, claims, investigations, orders, decrees, complaints or proceedings commenced or, to its knowledge, threatened against, 44 relating to or involving or otherwise affecting the Company, Parent or any of their respective Subsidiaries that relate to the consummation of the transactions contemplated by this Agreement; or
(vii) the occurrence of any other event which would reasonably be likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; PROVIDED, HOWEVER, for the avoidance of doubt, it is agreed by the Company and the Parent that cause any conditions or requirements for divestitures or the commitments submitted condition set forth in ANNEX A hereto to be unsatisfied in any Governmental Entity including commitments material respect at any time prior to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning consummation of the most recently concluded fiscal year Offer; provided, however, that the delivery of any notice pursuant to this Section 6.06(e) shall not limit or otherwise affect the Company or remedies available hereunder to the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome Commitmentparty receiving such notice.
Appears in 1 contract
Best Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, and subject to Section 5.02 and the Company's right to make the disclosures to its shareholders permitted under Section 5.02(d), each of the parties agrees to shall use their its best efforts to take, or cause to be taken, all appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer and Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including (i) the obtaining of all necessary actions or nonactionsactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps (subject to Section 6.06(g)) as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity and for the avoidance of doubtby, this shall include an obligation on Parent and Purchaser to use their best efforts to submit all necessary commitments, including commitments to divest, to any Governmental Entity, save that Parent and Purchaser's obligation to use their best efforts to submit all necessary commitments (as described in this Section 6.06(a)) shall not extend to the submission of a commitment which would constitute an Unduly Burdensome Commitment or the acceptance of an Unduly Burdensome Condition, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the transactions contemplated herebyTransactions, including, without limitation, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Transactions and to fully carry out the purposes ofof the Transaction Agreements; PROVIDED, this AgreementHOWEVER, that neither the Company nor Conopco shall be required to consent to any action described in Section 7.01(a). In connection with and without limiting the foregoing, the Company and its the Company Board of Directors shall, shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement or any other Transaction Agreement and (ii) if any state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or the any other transactions contemplated by this Transaction Agreement, use their best efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement the Transaction Agreements and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger and the other transactions contemplated by this AgreementTransactions. Nothing herein in this Section 6.03 shall limit be deemed to require any party to waive any substantial rights or affect the Company's taking actions specifically permitted by Section 6.05(b) and (c)agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets.
(b) In furtherance The Company shall give prompt notice to Conopco, and without limiting Conopco shall give prompt notice to the above provisionsCompany, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement, (i) file with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report required any representation or warranty made by the HSR Act (but it contained in no event later than ten (10) Business Days after the date of this Agreement), (ii) file with the European Commission under the EC Merger Regulation, the notification required by the EC Merger Regulation (but any Transaction Agreement that is qualified as to materiality being untrue or inaccurate in no event more than twenty eight (28) days after the date of this Agreement) and (iii) file with the relevant Governmental Entities in other jurisdictions, all other antitrust filings, if any, required for consummation of the transactions contemplated hereby under any applicable laws and regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act and the EC Merger Regulation or such other laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation and other relevant law or regulation. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the EC Merger Regulation and other relevant law or regulation. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC, the DOJ, the European Commission respect when given or any other Governmental Entity, and shall comply promptly with any such inquiry representation or request. Each of Parent and the Company shall use its best efforts and take all other actions necessary to cause the expiration warranty that is not so qualified being untrue or termination of the applicable waiting periods under the HSR Act and other applicable law or regulation and the clearance decision under the EC Merger Regulation and other applicable law or regulation as soon as practicable, and to provide assistance to the other inaccurate in any antitrust proceedings related to, the consummation of the transactions contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, in furtherance and not in limitation of the covenants of the parties contained in Sections 6.06(a) and 6.06(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any applicable law, each of the parties shall cooperate in all respects with each other and use its respective best efforts in order to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) If any objections are asserted with material respect to the transactions contemplated hereby under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of the Company and Parent shall use its best efforts to resolve any such objections or challenge such Governmental Entity or private party may have to such transactions so as to permit consummation of the transactions contemplated by this Agreement.
(e) Parent and Purchaser, on the one hand, and the Company, on the other hand, each hereby agrees promptly to provide such information necessary to the preparation of the Offer Documents and the Schedule 14D-1, respectively, which the respective party responsible therefor shall reasonably request.
(f) The existence of the conditions set forth in Section 7.01 and clauses (a) and (b) of ANNEX A shall not limit or diminish Parent's or Purchaser's obligations pursuant to this Section 6.06 or relieve Parent or Purchaser of any liability or damages that may result from its breach of its obligations under this Section 6.06.
(g) Nothing in this Section 6.06 or elsewhere in this Agreement shall require Purchaser or Parent to agree to any Unduly Burdensome Condition or to submit any Unduly Burdensome Commitment to any Governmental Entity in order to secure any approval from, or in order to resolve any objection or challenge that may be asserted by the FTC, the DOJ, the EC, any other Governmental Entity or any private party with respect to the Offer, the Merger or any of the other transactions contemplated hereby. For purposes of this Agreement "Unduly Burdensome Condition" and "Unduly Burdensome Commitment" shall mean (i) the imposition of conditions or the submission of commitments to any Governmental Entity when given or (ii) the requirement of divestitures failure by it to comply with or the submission of commitments satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under any Governmental Entity involving the making of divestitures that, in the case of clauses (i) and (ii), would, individually or in the aggregate, if offered or complied with, be reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on the ParentTransaction Agreement; PROVIDED, HOWEVER, for that no such notification shall affect the avoidance representations, warranties, covenants or agreements of doubt, it is agreed by the Company and the Parent that any conditions or requirements for divestitures parties or the commitments submitted conditions to any Governmental Entity including commitments to make divestitures that would, individually or in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning obligations of the most recently concluded fiscal year of parties under the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of U.S. $30 million or more (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would constitute an Unduly Burdensome Condition or Unduly Burdensome Commitment. For the avoidance of doubt, it is also agreed by the Company and the Parent that any conditions or requirement for divestitures that would, for or by the Company, the Parent and their respective Subsidiaries in the aggregate, had the same been in effect or have been completed by, or complied with from and after the beginning of the most recently concluded fiscal year of the Company or the Parent, as the case may be, reasonably be expected to have resulted in a reduction of less than U.S. $30 million (at currency rates used by the Company in preparing its financial statements for the fiscal year ended March 31, 2000) in net sales of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, in each case for the most recently concluded fiscal year of the Company and its consolidated Subsidiaries or the Parent and its consolidated Subsidiaries, as the case may be, from the net sales of the Company and its consolidated Subsidiaries, or the Parent and its consolidated Subsidiaries, as the case may be, as reported in the financial statements of the Company and its consolidated Subsidiaries, or the Parent and its Subsidiaries, as the case may be, would not constitute an Unduly Burdensome Condition or an Unduly Burdensome CommitmentTransaction Agreements.
Appears in 1 contract
Sources: Merger Agreement (Conopco Inc)