Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel. (b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Pn Acquisition Subsidiary Inc), Merger Agreement (National Computer Systems Inc), Merger Agreement (Pearson PLC)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Acquisition and the other transactions contemplated by Transactions. Nothing in this Agreement shall be deemed to require any party to waive any substantial rights, including any rights under another Transaction Agreement, including using all commercially reasonable efforts or to accomplish prohibit the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and Company from exercising any right under the Merger Agreement to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 terminate such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselagreement.
(b) The Prior to Closing, the Company shall give prompt notice to Parentthe Purchaser, and Parent the Purchaser shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall be deemed to be a waiver or cure of any such breach or failure to comply or affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements.
(c) Nothing in Section 6.03(a) shall require the Purchaser 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 Company to commit or agree to any of the foregoing, to obtain any consents, approvals, permits or authorizations to remove any impediments to the Acquisition relating to the HSR Act, any Japanese competition Law or other antitrust, competition or premerger notification, trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the 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.
(d) Nothing in this Section 6.03 shall require the Purchaser to (i) consent to any action or omission by the Company that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Metaldyne Corp), Preferred Stock Purchase Agreement (Metaldyne Corp)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. Without limiting the generality of the foregoing, the parties hereto acknowledge that it is the intention of each of the parties hereto that the TM Distribution (including obtaining all necessary third party consents and approvals with respect thereto, including as required under any securities laws) shall become payable immediately following the Effective Time to Company common stockholders of record one business day prior to the Closing Date and each party hereto shall use its commercially reasonable efforts to achieve the same. In connection with and without limiting the foregoing, the Company and the Company Board shallshall (i) take all action necessary to ensure that the TM Distribution is paid on terms and conditions consistent with the TM Distribution Conditions and the terms set forth in Exhibit B, if any (ii) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement or any other Transaction Agreement, the Offer, the Merger and (iii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any of the other transactions contemplated hereby or therebyTransaction Agreement, use its commercially reasonable 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 the Transaction Agreements and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby Transactions. Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or therebyagree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Company and its Representatives shall not be prohibited under this Section 6.03(a) from taking any action permitted by Section 5.02(b). Subject to applicable Law relating to the exchange of information, the Company and Parent and their respective counsel shall have the right to review in advance, and to the extent practicable each shall consult the other on, any filing made with, or written materials submitted to, any Governmental Entity in connection with the Merger and the other Transactions. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting provide the other party and its counsel with the opportunity to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating participate in any meeting with any Governmental Entity unless it consults with the in respect of any filing, investigation or other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request inquiry in connection with its preparation of necessary filings the Merger or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(b) The Company shall give prompt notice to Parent, and Parent or Acquisition Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall be deemed to be a waiver or cure of any such breach or failure to comply or affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements.
(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 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 relating to the HSR Act, the Japanese Anti-Monopoly law or other antitrust, competition or premerger notification, trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the 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.
(d) Nothing in this Section 6.03 shall require Parent to (i) consent to any action or omission by the Company that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement.
(e) As soon as reasonably practicable following the execution of this Agreement, Parent, in its capacity as the sole stockholder of Sub, shall adopt this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Metaldyne Corp), Agreement and Plan of Merger (Masco Corp /De/)
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement, each of the parties agrees shall use its commercially reasonable efforts (subject to, and in accordance with, applicable Law), to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger, the Subsequent Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions and Consents from Governmental Entities, Nasdaq and the TSX and the making of all necessary registrations and Filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid a Proceeding by, any Governmental Entity, Nasdaq or the TSX, (ii) the obtaining of all necessary Consents from Third Parties, and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions; provided, however, that in no event shall Parent, US Corp., Merger Sub, Merger LLC or the Company or any of their respective subsidiaries be required to (and in no event shall the Company or any Company Subsidiary without the prior written consent of Parent) pay any fee, penalty or other consideration to any Third Party or make any other concession to any Third Party for any Consent required for the consummation of the Transactions under any Contract.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) to the extent required, (A) promptly, but in no event later than ten Business Days after the date hereof, make their respective Filings under the HSR Act and (B) as promptly as reasonably practicable after the date hereof, make any other required submissions under the HSR Act (which submissions shall be in substantial compliance with the requirements of the HSR Act and any other applicable Law), (ii) use commercially reasonable efforts to cooperate with each other in (A) determining whether any Filings are required to be made with, or Consents are required to be obtained from, any Third Parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the Transactions and (B) timely making all such Filings (which Filings shall be in substantial compliance with the requirements of applicable Law) and timely seeking all such Consents and (iii) use commercially reasonable efforts to take, or cause to be taken, all other actions that are and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the OfferTransactions, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Entity may assert under Regulatory Law with respect to the Transactions. Notwithstanding anything in this Agreement to the contrary, in no event shall Parent be required to (and in no event shall the Company or any Company Subsidiary agree to without the prior written consent of Parent) divest any assets or agree to divest any assets or consent to or take any other action or agree to any limitation or make any concession or other undertaking which would individually, or together with all other such divestitures, agreements, consents, actions, limitations or concessions, be reasonably likely to materially and adversely affect (x) the benefits expected to be derived by Parent as a result of the Merger and the other transactions contemplated by this AgreementSubsequent Merger, including using all commercially reasonable efforts to accomplish the following: taken together, (iy) the taking business of all commercially reasonable acts necessary to cause the conditions to the Offer Parent and the Merger to be satisfied, (ii) the obtaining Parent Subsidiaries or of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shallSubsidiaries, if any state takeover statute in each case as currently conducted, or similar statute or regulation is or becomes applicable to this Agreement, (z) the Offer, the Merger or any business of the other transactions Company and the Company Subsidiaries as contemplated hereby or thereby, use its commercially reasonable efforts to ensure that be conducted on a combined basis with Parent and the Offer, Parent Subsidiaries following the Merger and the Subsequent Merger (any such requirement, individually or together with all other transactions contemplated by this Agreement may be consummated as promptly as practicable on such requirements, a “Burdensome Regulatory Action”). Subject to applicable legal limitations and the terms contemplated by this Agreement and otherwise to minimize the effect instructions of such statute or regulation on this Agreementany Governmental Entity, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversTransactions, consents, approvals, orders and authorizations, including, without limitation: (i) including promptly notifying the other of, and if in writing, furnishing the other with copies of (ornotices or other communications received by the Company or Parent, in as the case may be, or any of material oral communicationstheir respective subsidiaries, advise the other orally of) from any communications from or with Third Party and/or any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review and discuss in advance, and considering consider in good faith faith, the views of one another the other party in connection with, any proposed written (or material proposed oral) communication with to any Governmental Entity. Each of the Company and Parent agrees, (iii) to the extent reasonably feasible, not participating to participate in any meeting or discussion (other than relating to non-substantive matters such as the scheduling of any meetings or of any discussions), either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and and, to the extent permitted not prohibited by such Governmental Entity Entity, gives the other party the opportunity to attend and participate there at, (iv) furnishing participate. The Company and Parent shall furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such the other party may reasonably request in connection with its preparation of necessary filings Filings or submissions of information to any Governmental Entity. The Subject to applicable Laws relating to the exchange of information, Parent or the Company and shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder. Either Parent may, as each deems advisable and necessary, reasonably or the Company may designate any competitively sensitive material information provided to the other under this Section Agreement as "“outside counsel only." ”. Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient other and will not be disclosed by such outside counsel to employees, officers, officers or directors of the recipient their client unless express written permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) disclosing party or its legal counsel.
(bc) The In furtherance and not in limitation of the covenants of the parties contained in this Section 6.03, if any Proceeding, including any Proceeding by a private party, is instituted (or threatened to be instituted) challenging any Transaction as violative of any Regulatory Law, each of the Company shall give prompt notice to Parent, and Parent shall give prompt notice cooperate in all respects with each other and shall use their respective commercially reasonable efforts to the Companycontest and resist any such Proceeding and to have vacated, of (i) lifted, reversed or overturned any representation or warranty made by it contained in this Agreement Judgment that is qualified as to materiality becoming untrue in effect and that prohibits, prevents or inaccurate in any respect restricts consummation of the Transactions. Notwithstanding the foregoing or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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 other provision of this Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained nothing in this Section 6.03 shall limit a party’s right to terminate this Agreement pursuant to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants Section 8.01(b)(i) or agreements of the parties or the conditions to the 8.01(b)(ii).
(d) The obligations of Parent, US Corp., Merger Sub and Merger LLC with respect to obtaining the parties under Financing shall be governed by Section 6.12 and not this AgreementSection 6.03.
Appears in 2 contracts
Samples: Merger Agreement (SXC Health Solutions Corp.), Merger Agreement (Catalyst Health Solutions, Inc.)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all its commercially reasonable efforts to take, or cause to be taken, in good faith, all actions that are necessary, proper or advisable under applicable laws, to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreementhereby, including using all its commercially reasonable efforts to accomplish the followingfollowing as promptly as reasonably practicable following the date of this Agreement: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Section 6 to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain any necessary approvals or waivers from any Governmental Entity, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all materially necessary consents, approvals or waivers from third partiesparties and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement hereby 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 this Agreement, the OfferMerger and the other transactions contemplated hereby.
(b) In furtherance and not in limitation of the foregoing, each party agrees (i) to make required filings with the U.S. Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “DOJ”) and in any applicable foreign jurisdiction with the appropriate Governmental Entity, the notification and report form required under the HSR Act or the antitrust and competition laws of any such foreign jurisdiction, with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act, or the antitrust and competition laws of any such foreign jurisdiction, and to use its commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act and the antitrust and competition laws of any such foreign jurisdiction and (ii) to cooperate with the other parties to this Agreement in making such filings and other filings and disclosures in respect of the Merger and the other transactions contemplated hereby by this Agreement as may be necessary or thereby. The Company and Parent shall keep advisable.
(c) Notwithstanding the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining foregoing, if any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity objections are asserted with respect to the OfferMerger or any other transaction contemplated hereby under any Regulatory Law, or if any suit is threatened to be instituted, by any Governmental Entity challenging the Merger or any of the other transactions transaction contemplated hereby or brought otherwise by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults under any Regulatory Law that would prohibit or materially impair or materially delay the consummation of the Merger or any other transaction contemplated hereby, each of Parent, Merger Sub and the Company agrees to take actions that may be commercially reasonably necessary to resolve any objections as may be asserted by any Governmental Entity under such Regulatory Law with respect to the other party in advance and Merger (including disposing of or holding separate any businesses or assets of the Company, Parent or any of their respective Affiliates under the HSR Act to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselcommercially reasonable).
(bd) The Upon the Knowledge of the Company, the Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate such that the condition set forth in any respect or any such representation or warranty that is Section 6.2(a) would not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED provided however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(e) Upon the Knowledge of Parent, Parent shall give prompt notice to the Company of any representation or warranty made by it or Merger Sub contained in this Agreement becoming untrue or inaccurate such that the condition set forth in Section 6.3(a) would not be satisfied; provided however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(f) Each of the Company and Parent shall, in connection with the efforts referenced in Section 5.3(a) to obtain the approvals and authorizations (the “Requisite Approvals”) for the transactions contemplated by this Agreement under the HSR Act and any other Regulatory Law (as defined below), use its reasonable efforts to cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, and to promptly inform the other party of any communication received by such party from, or given by, such party. In connection with the foregoing, each party will (i) promptly notify the other party in writing of any communication received by that party
Appears in 2 contracts
Samples: Merger Agreement (Itt Corp), Merger Agreement (Edo Corp)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of this Agreement; provided, -------- however, that Parent shall not be required to consent to any actions (i) ------- challenging the acquisition by Parent or Sub of any Company Capital Stock, seeking to restrain or prohibit the consummation of the Offer, the Merger or any other material Transaction or seeking to obtain from the Company, Parent or Sub any damages in connection with the Transactions that would reasonably be expected to have a Company Material Adverse Effect, (ii) seeking to prohibit or materially limit the ownership or operation by the Company or Parent or Parent's subsidiaries of a material portion of the business or assets of the Company, or of Parent or any of Parent's subsidiaries taken as a whole, or to compel the Company, Parent or any of Parent's subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, or of Parent or any of Parent's subsidiaries taken as a whole, as a result of the Offer, the Merger or any other Transaction, (iii) seeking to impose material limitations on the ability of Parent or Sub to acquire or hold, or exercise full rights of ownership of, any shares of Company Capital Stock, including the right to vote the Company Capital Stock purchased by it on all matters properly presented to the stockholders of the Company, or (iv) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect the business or assets of the Company. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any shall (i) take all commercially reasonable action available to them to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby Transactions and (ii) if any state takeover statute or therebysimilar statute or regulation becomes applicable to this Agreement or any of the Transactions, use its take all commercially reasonable efforts 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby Transactions. Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or therebyagree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. The Company and Parent shall keep Notwithstanding the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offerforegoing, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) Company Board shall not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other be prohibited under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed 6.03(a) from taking any action permitted by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselSection 5.02.
(b) The Company shall give prompt notice to Parent, and Parent or Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall -------- ------- affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) The Company shall give prompt notice to Parent or Sub, as the case may be, and Parent or Sub shall give prompt notice to the Company if the party to provide the notice obtains actual knowledge of any breach or failure to perform by the party to receive the notice of any of the representations, warranties or covenants contained in this Agreement of the party to receive the notice that the party to receive the notice has the right to cure pursuant to the provisions of Section 8.01 or Exhibit A.
Appears in 2 contracts
Samples: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (vii) executing or delivering any additional instruments reasonably 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, subject to the other terms and conditions hereof, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable efforts and take all acts 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, nothing in this Agreement shall be deemed to require Parent or the Merger Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) failure of the failure by it Company 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.3(a) or Section 6.3(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to the Company upon becoming aware that any representation or warranty made by it or DYHP Acquisition contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or DYHP Acquisition 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, in each case, where the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (GeoPharma, Inc.), Agreement and Plan of Reorganization (Dynamic Health Products Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and Company, the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, and the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its Special Committee shall take all commercially reasonable efforts 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 Agreement. Notwithstanding the effect of such statute or regulation on this Agreementforegoing, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent its Representatives shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other be prohibited under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed 6.02(a) from taking any action permitted by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may beSection 5.02(b) or its legal counsel5.02(d).
(b) The (x) Prior to the Time of Appointment the Company shall, if and to the extent it becomes aware of any of the matters described in clauses (i) and (ii) below, give prompt notice to Parent and Sub, (y) following the Time of Appointment, if and to the extent it becomes aware of any of the matters described in clauses (i) and (ii) below, the Special Committee shall give prompt notice to ParentParent and Sub, and (z) at all times Parent shall or Sub shall, if and to the extent they become aware of any of the matters described in clauses (i) and (ii) below, give prompt notice to the CompanySpecial Committee, of (i) any representation or warranty made by it the Company or Parent or Sub, respectively, contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Nothing in Section 6.02(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 6.02(a) shall authorize the 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 relating to the HSR Act or other antitrust, competition or premerger notification, trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the 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 that in each such case may be conditioned upon the consummation of the Merger and that, in the reasonable judgment of Parent, individually or in the aggregate, have not had and could not reasonably be expected to (i) have a Parent Material Adverse Effect, (ii) have a Company Material Adverse Effect, or (iii) materially impair the benefits or advantages which Parent expects to be realized from the Merger and the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Cruzan International, Inc.), Merger Agreement (Absolut Spirits CO INC)
Commercially Reasonable Efforts; Notification. Effective from and after the Effective Date:
(a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to Party shall, and shall cause its controlled Affiliates to, use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective the Offereffective, as promptly as practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary or advisable actions or nonactionsnon-actions, waivers, consents, approvals, licenses, permits, orders or other authorizations and authorizations from Governmental Entities and consents (“Consent”) from, the making of all necessary registrations, declarations and filings, including filings with and the making taking of all filings reasonable steps as may be necessary to avoid any Litigation by, any Governmental Entity or other Third Party with respect to this Agreement or the Transactions and (ii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement.
(b) Without limiting the generality of the Parties’ obligations under Section 2.05(a), and in furtherance thereof, each of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Parties shall, as amendedand shall cause their respective controlled Affiliates to, in consultation and cooperation with the other, file with the United States Federal Trade Commission (the "HSR ACT"“FTC”) and the relevant foreign antitrust laws as promptly as reasonably practicableUnited States Department of Justice (the “DOJ”), the notification and report form, if any, required under the HSR Act for any Transaction. Any such filings shall be in substantial compliance with the requirements of the HSR Act. Each of the Parties shall, and in any eventshall cause each of their respective controlled Affiliates to, within five business days after the date hereof, and (iiii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable furnish to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially Parties such necessary information and reasonable efforts to ensure that the Offer, the Merger and assistance as the other transactions contemplated by this Agreement Parties 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively request in connection with obtaining its preparation of any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying filing or submission which is necessary under the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this AgreementHSR Act, (ii) permitting give the other party Parties reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for information from, the FTC, the DOJ or any other Governmental Entity regarding any of the Transactions, and permit the other Parties to review and discuss in advance, and considering consider in good faith the views of one another of, and secure the participation of, the other Parties in connection with, any proposed written (such filings, submissions, communications, inquiries or material proposed oral) communication with any Governmental Entityrequests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participating participate in or attend any meeting, or engage in any meeting substantive conversation, with any Governmental Entity unless it consults with in respect of any of the Transactions without the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.Parties,
Appears in 2 contracts
Samples: Settlement and License Agreement, Settlement and License Agreement
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, Agreement each of the parties agrees to shall use all their respective commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings and the taking of all reasonable steps as may be necessary to obtain any necessary approval or waiver from, declarations and filingsor to avoid an action or proceeding by, any Governmental Entity, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amendedand any applicable Foreign Competition Laws, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other Proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the Transactions, 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 and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any shall (A) take all commercially reasonable action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement or any other Transaction Agreement, the Offer, the Merger and (B) if any state Takeover Statute or similar statute or regulation becomes applicable to this Agreement or any of the other transactions contemplated hereby or therebyTransaction Agreement, use its take all commercially reasonable efforts 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby Transactions.
(b) Notwithstanding anything to the contrary in this Agreement, (i) the Company shall not, without Parent’s prior written consent, commit to any divestitures, licenses, hold separate arrangements or thereby. similar matters, including covenants affecting business operating practices (or allow any of its Subsidiaries to commit to any divestitures, licenses, hold separate arrangements or similar matters), and the Company shall commit to, and shall use its commercially best efforts to effect (and shall cause each of its Subsidiaries to commit to and use its commercially reasonable efforts to effect), any such divestitures, licenses, hold separate arrangements or similar matters as Parent shall request, but solely if such divestitures, licenses, hold separate arrangements or similar matters are contingent on consummation of the Merger and (ii) neither Parent nor any of its Subsidiaries shall be required to agree (with respect to (A) Parent or its Subsidiaries or (B) the Company or its Subsidiaries) to any divestitures, licenses, hold separate arrangements or similar matters, including covenants affecting business operating practices.
(c) The Company and Parent each shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversby the Transaction Agreements, consents, approvals, orders and authorizations, including, without limitation: (i) including promptly notifying the other of, and if in writing, furnishing the other with copies of (ornotice or other communications received by Parent or the Company, in as the case may be, or any of material oral communicationsits Subsidiary, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(bd) The Company shall give prompt notice to Parent, and Parent or Sub shall give prompt notice to the Company, of of, and such party shall use its commercially reasonable efforts to prevent, or promptly remedy (i) any representation or warranty made by it contained in this any Transaction 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, respect or (ii) the 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 any Transaction Agreement; provided, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this any other Transaction Agreement.
Appears in 2 contracts
Samples: Merger Agreement (CFC International Inc), Merger Agreement (Illinois Tool Works Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, unless, to the extent permitted by Section 6.02(b), the Company Board approves or recommends a Superior Company Proposal, each of the parties agrees to shall, at its expense, use all their respective commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings and the taking of all reasonable steps as may be necessary to obtain any necessary approval or waiver from, declarations and filingsor to avoid an action or proceeding by, any Governmental Entity, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amendedand any applicable Foreign Competition Laws, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other Proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the Transactions, 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 and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation shall (A) take all commercially reasonable action necessary to ensure that no Takeover Statute is or becomes applicable to any Transaction or this Agreement or any other Transaction Agreement, the Offer, the Merger and (B) if any Takeover Statute becomes applicable to this Agreement or any of the other transactions contemplated hereby or therebyTransaction Agreement, use its take all commercially reasonable efforts 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby Transactions. Notwithstanding the foregoing, the Company shall not be prohibited under this Section 7.03(a) from taking any action permitted by Section 6.02.
(b) Without limiting the generality of the foregoing, each of the parties shall promptly file any Notification and Report Forms and related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act, and thereafter shall use all necessary efforts and take all necessary actions to obtain an early termination of the applicable waiting period, to make any further filings or therebyinformation submissions pursuant thereto that may be necessary, proper or advisable, to respond to formal requests for additional information or documentary material pursuant to 16 C.F.R. 803.20 under the HSR Act and to avoid, contest and/or overcome any administrative or judicial action or order that would restrict, prevent or prohibit the consummation of the Merger and the other Transactions. Each party shall cooperate with the other parties hereto in connection with making any filing under the HSR Act or premerger filings under any other Foreign Competition Laws, including, with respect to the party making a particular filing, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith.
(c) Notwithstanding anything to the contrary in this Agreement, (i) the Company shall not, without Parent’s prior written consent, commit to any divestitures, licenses, hold separate arrangements or similar matters, including covenants affecting business operating practices (or allow any of its Subsidiaries to commit to any divestitures, licenses, hold separate arrangements or similar matters), and the Company shall commit to, and shall use its commercially reasonable efforts to effect (and shall cause each of its Subsidiaries to commit to and use its commercially reasonable efforts to effect), any such divestitures, licenses, hold separate arrangements or similar matters as Parent shall request, but solely if such divestitures, licenses, hold separate arrangements or similar matters are contingent on consummation of the Offer and (ii) neither Parent nor any of its Subsidiaries shall be required to agree (with respect to (A) Parent or its Subsidiaries or (B) the Company or its Subsidiaries) to any divestitures, licenses, hold separate arrangements or similar matters, including covenants affecting business operating practices.
(d) The Company and Parent each shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversTransactions, consents, approvals, orders and authorizations, including, without limitation: (i) including promptly notifying the other of, and if in writing, furnishing the other with copies of (ornotice or other communications received by Parent or the Company, in as the case may be, or any of material oral communicationsits Subsidiaries, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(be) The Company shall give prompt notice to Parent of any change or event having or which would reasonably be expected to have a Company Material Adverse Effect. The Company shall give prompt notice to Parent, and Parent or Sub shall give prompt notice to the Company, of of, and such party shall use its commercially reasonable efforts to prevent, or promptly remedy: (i) any representation or warranty made by it contained in this any Transaction Agreement that is qualified as to materiality or Company Material Adverse Effect 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) the 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 any Transaction Agreement; provided, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this any Transaction Agreement. All notifications required pursuant to the foregoing shall be given in writing in accordance with Section 10.2, or, if oral, shall be promptly confirmed in writing in accordance with Section 10.2.
Appears in 2 contracts
Samples: Merger Agreement (Illinois Tool Works Inc), Merger Agreement (Click Commerce Inc)
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, each of the parties agrees shall: (i) use commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including, without limitation, any filing under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) use all commercially reasonable efforts (other than the payment of money which is not contractually required to be paid) to obtain in writing any consents required from third parties to effectuate the Merger, such consents to be in form reasonably satisfactory to each of the parties (including, without limitation, taking the actions contemplated under Schedule 5.3(a)(ii)); and (iii) use commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Pre-Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the OfferTransactions, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on Post-Merger Contribution Transactions. If at any time after the terms contemplated by this Agreement and otherwise Effective Time any further action is necessary or desirable to minimize carry out the effect purpose of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent each party shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of take all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselaction.
(b) The Company Crown and Crown Partnership shall use commercially reasonable efforts to obtain from Ernst & Young LLP access to all work papers relating to audits of Crown and Crown Partnership performed by Ernst & Young LLP, and the continued cooperation of Ernst & Young LLP with regard to the preparation of consolidated financial statements for the Surviving Trust.
(c) Crown and Crown Partnership shall give prompt notice to ParentPREIT and PREIT Partnership, and Parent PREIT and PREIT Partnership shall give prompt notice to the CompanyCrown and Crown Partnership, of (i) if any representation or warranty made by it contained in this Agreement that is not qualified as to materiality becoming becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming becomes untrue or inaccurate in any material respect, respect or (ii) of the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Crown American Realty Trust), Merger Agreement (Pennsylvania Real Estate Investment Trust)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. Without limiting the generality of the foregoing, the parties hereto acknowledge that it is the intention of each of the parties hereto that the TM Distribution (including obtaining all necessary third party consents and approvals with respect thereto, including as required under any securities laws) shall become payable immediately following the Effective Time to Company common stockholders of record one business day prior to the Closing Date and each party hereto shall use its commercially reasonable efforts to achieve the same. In connection with and without limiting the foregoing, the Company and the Company Board shallshall (i) take all action necessary to ensure that the TM Distribution is paid on terms and conditions consistent with the TM Distribution Conditions and the terms set forth in Exhibit B, if any (ii) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement or any other Transaction Agreement, the Offer, the Merger and (iii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any of the other transactions contemplated hereby or therebyTransaction Agreement, use its commercially reasonable 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 the Transaction Agreements and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby Transactions. Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or therebyagree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Company and its Representatives shall not be prohibited under this Section 6.03(a) from taking any action permitted by Section 5.02(b). Subject to applicable Law relating to the exchange of information, the Company and Parent and their respective counsel shall have the right to review in advance, and to the extent practicable each shall consult the other on, any filing made with, or written materials submitted to, any Governmental Entity in connection with the Merger and the other Transactions. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting provide the other party and its counsel with the opportunity to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating participate in any meeting with any Governmental Entity unless it consults with the in respect of any filing, investigation or other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request inquiry in connection with its preparation of necessary filings the Merger or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(b) The Company shall give prompt notice to Parent, and Parent or Acquisition Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall be deemed to be a waiver or cure of any such breach or failure to comply or affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements.
(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 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 relating to the HSR Act, the Japanese Anti-Monopoly law or other antitrust, competition or premerger notification, trade regulation law, regulation or order ("Antitrust Laws") or to avoid the 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.
(d) Nothing in this Section 6.03 shall require Parent to (i) consent to any action or omission by the Company that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement.
(e) As soon as reasonably practicable following the execution of this Agreement, Parent, in its capacity as the sole stockholder of Sub, shall adopt this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Metaldyne Corp), Agreement and Plan of Merger (Credit Suisse/)
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, the Company and Camden shall: (a) to the conditions set forth extent required, promptly make their respective filings and thereafter make any other required submissions under the HSR Act with respect to the Merger; (b) use all commercially reasonable efforts to cooperate with one another in (i) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the transactions contemplated by such agreements and (ii) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (c) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Merger, such consents to be in reasonably satisfactory form to the Company and Camden; and (d) use all commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. If, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in at any event, within five business days time after the date hereofEffective Time, and (iii) any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger proper officers 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counseland Camden shall take all such necessary action.
(b) The Company shall give prompt notice to ParentCamden, and Parent Camden or Camden Sub shall give prompt notice to the Company, of if (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Camden Property Trust), Merger Agreement (Paragon Group Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (vii) executing or delivering any additional instruments reasonably 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, subject to the other terms and conditions hereof, Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable efforts and take all commercially reasonable acts 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent or Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.3(a) or Section 6.3(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub 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, in each case, where the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Quantum Effect Devices Inc), Agreement and Plan of Reorganization (PMC Sierra Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, Governmental Entity and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its all commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby hereby. Notwithstanding the foregoing or therebyany other provision of this Agreement to the contrary, in no event shall any party hereto be required to agree or proffer to divest or hold separate, or take any other action with respect to, any of the material assets (whether tangible or intangible) or businesses of Parent and its subsidiaries, taken as a whole, or the Company and subsidiaries, taken as a whole, and the Company shall not, and shall not permit any of its subsidiaries to, take any such action with respect to any such assets or businesses without the express written consent of Parent. The Company and Parent shall keep the provide such assistance, information and cooperation to each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively as is reasonably requested in connection with obtaining any such waiversthe foregoing and, consentsin connection therewith, approvals, orders and authorizations, including, without limitation: (i) promptly notifying shall notify the other ofperson promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and if in writing, furnishing shall supply the other person with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger all correspondence between such person or any of its representatives, on the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advanceone hand, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with on the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselhand.
(b) The Company shall give prompt notice agrees to Parentprovide, and Parent shall give prompt notice will cause its subsidiaries and its and their respective officers, employees and advisors to the Companyprovide, of all cooperation reasonably necessary in connection with (i) the arrangement of any representation financing to be consummated contemporaneous with or warranty made at or after the Closing in respect of the transactions contemplated by it contained in this 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, and (ii) the failure by it matters set forth in Section 5.05(b) of the Company Disclosure Schedule. In addition, in conjunction with the obtaining of any such financing or otherwise, the Company agrees, at the request of Parent, (i) to comply with call for prepayment or satisfy in redemption, or to prepay, repurchase, redeem and/or seek to renegotiate, as the case may be, any material respect any covenantthen existing indebtedness for borrowed money of the Company; provided, condition however, that (x) no such prepayment, repurchase or agreement redemption shall be required to be complied with or satisfied by it under this Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions effective prior to the obligations of Effective Time and (y) Parent and its subsidiaries (other than the parties under this Agreement.Company and its subsidiaries) shall provide to the Company on a timely basis all the consideration used in connection with such prepayment, repurchase or redemption
Appears in 2 contracts
Samples: Acquisition Agreement (Alloy Inc), Acquisition Agreement (Alloy Inc)
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, (i) each of the parties agrees shall use commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Times with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Times from, Governmental Entities and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) JP and PDC LP shall use all commercially reasonable efforts to obtain in writing any consents required from third parties to effectuate the Mergers and the other transactions contemplated hereby, such consents to be in form reasonably satisfactory to GGP and GGP Partnership; and (iii) each of the parties shall use commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in . If at any event, within five business days time after the date hereof, and (iii) Effective Times any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent each party shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of take all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselaction.
(b) The Company JP and PDC LP shall use commercially reasonable efforts to obtain from PricewaterhouseCoopers LLP access to all work papers relating to audits of JP and PDC LP performed by PricewaterhouseCoopers LLP, and the continued cooperation of PricewaterhouseCoopers LLP with regard to the preparation of consolidated financial statements for the Surviving Company.
(c) JP and PDC LP shall give prompt notice to ParentGGP and GGP Partnership, and Parent GGP and GGP Partnership shall give prompt notice to the CompanyJP, of (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to materiality becoming becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming becomes untrue or inaccurate in any material respect, respect or (ii) of the failure by it or them 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Price Development Co Lp), Merger Agreement (General Growth Properties Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable necessary to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws Exon-Florxx Xxxndment as promptly as reasonably practicable, and in any event, within five 15 business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any provision of the Company's Articles of Incorporation, Bylaws or any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger Transactions or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offerthis Agreement, the Merger and Transactions or the other transactions contemplated by this Agreement hereby or thereby 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 this Agreementprovision, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.statute
Appears in 2 contracts
Samples: Merger Agreement (Morrison Management Specialists Inc), Merger Agreement (Yorkmont One Inc)
Commercially Reasonable Efforts; Notification. 5.3.1 Subject to the terms and conditions herein provided, the Company and Acquiror shall: (a) Upon the terms and subject use commercially reasonable efforts to cooperate with one another in (i) determining which filings are required to be made prior to the conditions set forth Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the Transactions and (ii) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations, (b) use commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Merger, such consents to be in reasonably satisfactory form to the Company and Acquiror; and (c) use all commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the OfferTransactions. If, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in at any event, within five business days time after the date hereofEffective Time, and (iii) any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger proper officers 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from Company and Acquiror shall take all such necessary action. From the source of date hereof through the materials (Effective Time, the Company or Parentshall timely file with the SEC all Company SEC Documents required to be so filed. From the date hereof through the Effective Time, as the case may be) or its legal counselAcquiror shall timely file with the SEC all Acquiror SEC Documents required to be so filed.
(b) 5.3.2 The Company shall give prompt notice to ParentAcquiror, and Parent Acquiror or Merger Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Post Apartment Homes Lp), Merger Agreement (Columbus Realty Trust)
Commercially Reasonable Efforts; Notification. (a) Commercially Reasonable Efforts. Upon the terms and subject to the conditions set forth in this Agreement, except to the extent otherwise required under applicable laws and regulations and otherwise provided in this SECTION 5.3, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the Share Issuance, and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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 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 this Agreement; provided, however, that neither of the parties shall be under any obligation to take any action to the extent that the Board of Directors of such party shall conclude in good faith, after consultation with and based upon the advice of their respective outside legal counsel (which advice in each case need not constitute an opinion), that such action would cause a breach of that Board of Directors' fiduciary obligations under applicable law. In connection with and without limiting the foregoing, each of the Company and the Company Parent and its respective Board shall, if any of Directors shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreementthe Merger, (ii) if any state takeover statute or similar statute or regulation becomes applicable to the OfferMerger, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting cooperate with any Governmental Entity unless it consults with the each other party in advance and to the extent permitted by such Governmental Entity gives reasonably requested in the other party the opportunity to attend and participate there atarrangements for refinancing any indebtedness of, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and or obtaining any Governmental Entity with respect to this Agreementnecessary new financing for, the Offer Company and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel onlySurviving Company." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Roadway Corp), Merger Agreement (Yellow Corp)
Commercially Reasonable Efforts; Notification. (a) a. Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause :
i. causing the conditions to the Offer and the Merger precedent set forth in ARTICLE IV to be satisfied, (;
ii) the . obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from any federal, state, local or foreign governmental authority (collectively, “Governmental Entities Entities” and the each a “Governmental Entity”);
iii. making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any);
iv. avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement;
v. obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement;
vi. defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and
vii. executing or delivering any additional instruments reasonably necessary to consummate the transactions contemplated by, and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and b. Parent shall give prompt notice to the Company, of (i) BUDEE upon becoming aware that any representation or warranty made by it or BA contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it BA to comply with or satisfy in any material respect any covenant, condition or agreement Agreement to be complied with or satisfied by it under this Agreement, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
c. BUDEE shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of BUDEE 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions conditions, including, without limitation, Section 5.2, set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, the HSR Act) and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated by this Agreement, (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution or 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 each of Parent and Company and the Company Board their respective Boards of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its all commercially reasonable 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent, Company or any subsidiary or Affiliate of Parent or Company to agree to any divestiture by itself or any of its Affiliates of shares of capital stock or the other transactions contemplated by this Agreementimposition of any material limitation on the ability of any of them to conduct their business or to own or exercise control of such assets, (ii) permitting the other party to review properties and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselstock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this 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 has become untrue or inaccurate in any material respect, (ii) the or of any failure by it of Company 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. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.4(b) requires any change in the Company Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Company Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Company shall promptly deliver to Parent an update to the Company Schedule specifying such change. No such update shall be deemed to supplement or amend the Company Schedule for the purpose of determining (iiii) the accuracy of any change or event having, or that is reasonably likely to have, a Material Adverse Effect on of the notifying party or on the truth of their respective representations and warranties or the ability made by Company in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate in any material respect, or of any failure of Parent or Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants complied with or agreements of the parties or the conditions to the obligations of the parties satisfied by it under this Agreement. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.4(c) requires any change in the Parent Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Parent Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Parent shall promptly deliver to Company an update to the Parent Schedule specifying such change. No such update shall be deemed to supplement or amend the Parent Schedule for the purpose of determining (i) the accuracy of any of the representations and warranties made by Parent and Merger Sub in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; (vii) executing or delivering any additional instruments reasonably necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and (viii) to cause the Merger to qualify as a "reorganization" under Section 368(a) of the Code. In connection with and without limiting the foregoing, subject to the other terms and conditions hereof, Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselhereby.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.3(a) or Section 6.3(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub 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, in each case, where the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Novell Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Etherogen upon obtaining knowledge that any representation or warranty made by it it, or EAC contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it EAC 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Etherogen shall give prompt notice to Parent upon obtaining knowledge that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Etherogen 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (TrovaGene Inc.)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) OrthoNetx upon becoming aware that any representation or warranty made by it or EYDY Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it EYDY Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.Section ___________ ___________
Appears in 1 contract
Samples: Merger Agreement (Eye Dynamics Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, including Section 4.02, each of the parties agrees to use use, to the fullest extent permitted by Applicable Law, all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this AgreementAgreement and the Tender Agreements, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoingforegoing and subject to the terms and conditions of this Agreement, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Tender Agreements, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions by the Company 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 this Agreement, the Tender Agreements, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the will provide such assistance, information and cooperation to each other apprised of the status of matters relating as is reasonably required to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining obtain any such waivers, consents, approvals, orders and authorizationsauthorizations and, includingin connection therewith, without limitation: (i) promptly notifying will notify the other ofPerson promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and if in writing, furnishing will supply the other Person with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger all correspondence between such Person or any of its representatives, on the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advanceone hand, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with on the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselhand.
(b) The Company shall use commercially reasonable efforts to give prompt notice to ParentParent after acquiring Knowledge of, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as becoming, or determined to materiality becoming have been, untrue or inaccurate in any respect inaccurate, or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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, Agreement such that the conditions in paragraph (d) or (iiie) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to Exhibit A would not be satisfied; PROVIDED provided that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall use commercially reasonable efforts to give prompt notice to the Company after acquiring Knowledge of, (i) any representation or warranty made by it or Sub contained in this Agreement becoming, or determined to have been, untrue or inaccurate, (ii) the failure by it to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, or
Appears in 1 contract
Samples: Merger Agreement (Clark Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to Company, RHJI and the Purchasers' Representative shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with each other in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Acquisition and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. In addition, each Purchaser shall use its 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 Acquisition and any other documents to which such Purchaser is a party delivered in connection with the Acquisition and without limiting the Transactions to the extent reasonably applicable to, or required of, such Purchaser. Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Company and its Representatives shall not be prohibited under this Section 6.03(a) from taking any action permitted by Section 5.02(b) . Subject to applicable Law relating to the exchange of information, the Company Board shalland the Purchasers’ Representative and their respective counsel shall have the right to review in advance, if any state takeover statute or similar statute or regulation is or becomes applicable and to this Agreement, the Offer, the Merger or any of extent practicable each shall consult the other transactions contemplated hereby on, any filing made with, or therebywritten materials submitted to, use its commercially reasonable efforts to ensure that any Governmental Entity in connection with the Offer, the Merger Acquisition 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or therebyTransactions. The Company and Parent the Purchasers’ Representative shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting provide the other party and its counsel with the opportunity to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating participate in any meeting with any Governmental Entity unless it consults with the in respect of any filing, investigation or other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request inquiry in connection with its preparation of necessary filings the Acquisition or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(b) The Prior to Closing, the Company shall give prompt notice to Parentthe Purchasers’ Representative, and Parent the Purchasers’ Representative shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall be deemed to be a waiver or cure of any such breach or failure to comply or affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements.
(c) Nothing in Section 6.03(a) shall require any Purchaser 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 Company to commit or agree to any of the foregoing, to obtain any consents, approvals, permits or authorizations to remove any impediments to the Acquisition relating to the HSR Act, any Japanese competition Law or other antitrust, competition or premerger notification, trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the 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.
(d) Nothing in this Section 6.03 shall require the Purchasers’ Representative to (i) consent to any action or omission by the Company that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Purchaser Parties and the Company Parties agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions that are 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 to Closing applicable to such party pursuant to this Agreement and to consummate and make effective effective, in the Offermost expeditious manner practicable, the REIT Merger, the OP Merger, the Montgomery Merger and the other transactions contemplated by this AgreementAgrxxxxxx, including using all commercially reasonable efforts to accomplish the following: xxcluding (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the preparation and making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain all necessary approvals, as amended, waivers or exemptions from any Governmental Entity; (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals approvals, waivers or waivers exemptions from non-governmental third parties, including the consents, approvals, waivers or exemptions set forth on Schedule 7.2(e) hereof; and (iii) the execution and delivery of any additional documents or instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and to effectuate the Partnerships Amendments described in this Section 6.2(a). In connection with and without limiting addition, prior to the foregoingClosing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, shall use its commercially reasonable efforts to, or cause one or more of the Company Subsidiaries to, acquire, repurchase or otherwise redeem (or otherwise enable a designee of Acquiror to ensure that acquire or purchase) the Offerequity interests of the Persons identified on Schedule 6.2(a) hereto in the entities set forth opposite the name of such Persons on Schedule 6.2(a) hereto, on terms and conditions set forth on Schedule 6.2(a) hereto or such other terms and conditions as may be reasonably requested by Acquiror, pursuant to agreements and other documentation reasonably satisfactory to Acquiror. Each of the Merger and parties hereto shall furnish to 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with parties such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing. Prior to the consummation of the OP Merger, the Operating Partnership shall take all actions necessary or appropriate (including obtaining the requisite approval or consents of holders of the LP Units) to amend the Operating Partnership Agreement to permit the withdrawal of the Company as the general partner of the Operating Partnership and the admission of a new general partner of the Surviving OP Partnership pursuant to the OP Merger as contemplated by Section 3.6(c) (the "Operating Partnership Actions"). Immediately following the OP Effective Time and prior to the REIT Effective Time, the Surviving OP Partnership shall amend and restate the Surviving OP Agreement in a form reasonably satisfactory to Acquiror (the foregoing amendments and restatements collectively referred to as the "OP Partnership Amendments") to, among other things, remove any restriction on the consummation of the REIT Merger as contemplated herein. Immediately following the Montgomery Effective Time and prior to the REIT Effective Time, the Sxxxxxxxx Xontgomery Partnership shall amend and restate the Surviving Montgomexx Xxxxxxxnt in a form reasonably satisfactory to Acquiror (txx "Xxxxxxmery Partnership Amendments," and together with the OP Partnersxxx Xxxxxxents, the "Partnerships Amendments") to, among other things, remove any restriction on the consummation of the REIT Merger as contemplated herein. At Acquiror's request, upon reasonable notice, the Company Parties shall provide reasonable assistance to Acquiror and its Affiliates in obtaining the Acquisition Financing (including by participating in meetings, due diligence sessions and the preparation of necessary filings or submissions of information to any Governmental Entity. The Company presentation materials, bank book and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials similar documents and the information contained therein execution and delivery of financing documents and other requested certificates or documents). From the date of this Agreement through the Effective Time, the Company shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officerstimely file, or directors of cause to be filed, with the recipient unless express permission is obtained in advance from the source of the materials (the SEC all Company or Parent, as the case may be) or its legal counselSEC Documents required to be so filed by applicable Law.
(b) The Company shall give prompt notice From time to Parent, and Parent shall give prompt notice time prior to the CompanyEffective Time, of (i) the Company shall notify Acquiror with respect to any matter hereafter arising or any information obtained after the date hereof which, if existing, occurring or known at or prior to the date of this Agreement, would have been required to be set forth or described in the Company Parties Disclosure Schedule and (ii) Acquiror shall notify the Company with respect to any matter hereafter arising or any information obtained after the date hereof which, if existing, occurring or known at or prior to the date of this Agreement, would have been required to be set forth or described in the Purchaser Parties Disclosure Schedule. For purposes of determining the accuracy of any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth satisfaction of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations consummation of the parties under this Agreementtransactions contemplated hereby, no such supplement, amendment or information provided by either the Company or Acquiror shall be considered.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kramont Realty Trust)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions conditions, including, without limitation, Section 5.3, set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, the HSR Act) and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated by this Agreement, (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution or 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 each of Parent and Company and the Company Board their respective Boards of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its all commercially reasonable 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent, Company or any subsidiary or Affiliate of Parent or Company to agree to any divestiture by itself or any of its Affiliates of shares of capital stock or the other transactions contemplated by this Agreementimposition of any material limitation on the ability of any of them to conduct their business or to own or exercise control of such assets, (ii) permitting the other party to review properties and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselstock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this 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 has become untrue or inaccurate in any material respect, (ii) the or of any failure by it of Company 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. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.5(b) requires any change in the Company Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Company Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Company shall promptly deliver to Parent an update to the Company Schedule specifying such change. No such update shall be deemed to supplement or amend the Company Schedule for the purpose of determining (iiii) the accuracy of any change or event having, or that is reasonably likely to have, a Material Adverse Effect on of the notifying party or on the truth of their respective representations and warranties or the ability made by Company in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate in any material respect, or of any failure of Parent or Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants complied with or agreements of the parties or the conditions to the obligations of the parties satisfied by it under this Agreement. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.5(c) requires any change in the Parent Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Parent Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Parent shall promptly deliver to Company an update to the Parent Schedule specifying such change. No such update shall be deemed to supplement or amend the Parent Schedule for the purpose of determining (i) the accuracy of any of the representations and warranties made by Parent and Merger Sub in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (MSC Software Corp)
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, each of the parties agrees shall: (i) use commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) use all commercially reasonable efforts (other than the payment of money which is not contractually required to be paid) to obtain in writing any consents required from third parties to effectuate the Mergers, such consents to be in form reasonably satisfactory to each of the parties; and (iii) use commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. If at any time after the Effective Time any further action is necessary or desirable to carry out the purpose of this Agreement, including using each party shall take all such necessary action.
(b) Prentiss and Prentiss Partnership shall use all commercially reasonable efforts to accomplish obtain from PricewaterhouseCoopers LLP, access to all work papers relating to audits of Prentiss and Prentiss Partnership performed by PricewaterhouseCoopers LLP, and the following: (i) the taking continued cooperation of all commercially reasonable acts necessary to cause the conditions PricewaterhouseCoopers LLP, with regard to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to consolidated financial statements for the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselSurviving Corporation.
(bc) The Company Prentiss and Prentiss Partnership shall give prompt notice to ParentMack-Cali and Mack-Cali Partnership, and Parent Mack-Cali and Mack-Cali Partnership shall give prompt notice to the CompanyPrentiss and Prentiss Partnership, of (i) if any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming becomes untrue or inaccurate in any material respect, respect or (ii) of the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Mergers and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Mergers or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company Callisto shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Synergy upon becoming aware that any representation or warranty made by it it, Parent, Callisto Merger Sub or Synergy Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Callisto, Parent, Callisto Merger Sub or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Synergy Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Synergy shall give prompt notice to Callisto upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Synergy 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Webtronics Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, The Merger Agreement provides that each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this the Merger Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereofof the Merger Agreement, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this the Merger Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this the Merger Agreement may be consummated as promptly as practicable on the terms contemplated by this the Merger Agreement and otherwise to minimize the effect of such statute or regulation on this the Merger Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby thereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this the Merger Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this the Merger Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section paragraph as "outside counsel only." ". Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) . The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this the Merger 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, (ii) the 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 the Merger Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect material adverse effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this the Merger Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this the Merger Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, CIM and Trust shall: (i) promptly make their respective filings and thereafter make any other required submissions under the HSR Act with respect to the conditions set forth Transactions as required pursuant to Section 8.4 below; (ii) use all commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, Governmental Entity of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the transactions contemplated by such agreements and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (iii) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees pursuant to Section 9.2(d) or 9.3(i) to effectuate the Transactions, such consents to be in reasonably satisfactory form to CIM and Trust; and (iv) use all commercially reasonable efforts to take, or cause to be taken, all other actions that are and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(b) The Company CIM shall give prompt notice to ParentTrust, and Parent Trust shall give prompt notice to the CompanyCIM, of if, to CIM’s knowledge or Trust’s knowledge, as applicable, (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect respect, or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, or any representation or warranty made by it contained in this Agreement is reasonably likely to give rise to a failure of a condition contained in Section 9.2(a) or 9.3(a), as applicable, to effect the Transactions; or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer precedent set forth in Exhibit A and the Merger Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, Governmental Entity and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its commercially reasonable efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement hereby 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby hereby. Notwithstanding the foregoing or therebyany other provision of this Agreement to the contrary, in no event shall Parent or Sub be required to agree or proffer to divest or hold separate, or take any other action with respect to, any of the assets (whether tangible or intangible) or businesses of Parent and its subsidiaries, taken as a whole, or the Company and subsidiaries, taken as a whole, and the Company shall not, and shall not permit any of its subsidiaries to, take any such action with respect to any such assets or businesses without the express written consent of Parent. The Company and Parent shall keep the provide such assistance, information and cooperation to each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively as is reasonably requested in connection with obtaining any such waiversthe foregoing and, consentsin connection therewith, approvals, orders and authorizations, including, without limitation: (i) promptly notifying shall notify the other ofperson promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and if in writing, furnishing shall supply the other person with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger all correspondence between such person or any of its representatives, on the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advanceone hand, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with on the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel onlyhand." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, Governmental Entity and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its all commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby hereby. Notwithstanding the foregoing or therebyany other provision of this Agreement to the contrary, in no event shall any party hereto be required to agree or proffer to divest or hold separate, or take any other action with respect to, any of the material assets (whether tangible or intangible) or businesses of Parent and its subsidiaries, taken as a whole, or the Company and subsidiaries, taken as a whole, and the Company shall not, and shall not permit any of its subsidiaries to, take any such action with respect to any such assets or businesses without the express written consent of Parent. The Company and Parent shall keep provide such assistance, information and cooperation to each other as is reasonably requested in connection with the foregoing and, in connection therewith, shall notify the other apprised person promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and shall supply the status other person with copies of matters relating all correspondence between such person or any of its representatives, on the one hand, and any Governmental Entity, on the other hand.
(b) The Company, without limiting Section 3.02(m), agrees to provide, and will cause its subsidiaries and its and their respective officers, employees and advisors to provide, all cooperation reasonably necessary in connection with (i) the completion arrangement of any financing to be consummated contemporaneous with or at or after the Closing in respect of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, Agreement and (ii) permitting the other party to review and discuss matters set forth in advanceSection 5.05(b) of the Company Disclosure Schedule. In addition, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults conjunction with the other party in advance and to the extent permitted by obtaining of any such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreementfinancing or otherwise, the Offer and Company agrees, at the Mergerrequest of Parent, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings to call for prepayment or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersredemption, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parentto prepay, repurchase, redeem and/or seek to renegotiate, as the case may be, any then existing indebtedness for borrowed money of the Company; provided, however, that (x) no -------- ------- such prepayment, repurchase or its legal counsel.
(b) The Company redemption shall give prompt notice be required to Parent, and Parent shall give prompt notice be effective prior to the Company, of Effective Time and (iy) any representation or warranty made by it contained in this 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, Parent and its subsidiaries (iiother than the Company and its subsidiaries) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions provide to the obligations of Company on a timely basis all the parties under this Agreementconsideration used in connection with such prepayment, repurchase or redemption.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all its commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts actions necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from from, and the giving of any necessary notices to, Governmental Entities and the making of all necessary registrations, declarations and filings, filings (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976and other registrations, as amendeddeclarations and filings with, or notices to, Governmental Entities, if any), (iii) the "HSR ACT") and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any event, within five business days after the date hereof, Governmental Entity and (iiiiv) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the generality of the foregoing, each of the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall any party hereto be obligated to (A) agree or proffer to divest or hold separate, or enter into any licensing or similar arrangement with respect to, (iix) permitting any assets (whether tangible or intangible) or any portion of any business of Parent or any of its subsidiaries or (y) any material assets (whether tangible or intangible) or any material portion of any business of the other party to review and discuss in advanceCompany or any of its subsidiaries or (B) litigate any suit, and considering in good faith the views of one another in connection withclaim, any proposed written (action, investigation or material proposed oral) communication with proceeding, whether judicial or administrative brought by any Governmental Entity, (iii1) not participating in any meeting with any Governmental Entity unless it consults with challenging or seeking to restrain or prohibit the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies consummation of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and ; (v2) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings seeking to prohibit or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the failure by it to comply with or satisfy limit in any material respect the ownership or operation by the Company, Parent or any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability affiliates of a material portion of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants business or agreements assets of the parties Company and its subsidiaries, taken as a whole, or the conditions Parent and its subsidiaries, taken as a whole, or to the obligations require any such person to dispose of or hold separate any material portion of the parties under this Agreement.business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, as a result of the Merger; or
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (aA) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to shall take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicableTransactions, and in any event, within five business days after the date hereof, and (iii) the obtaining of shall take all action necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts 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 Agreement.
(B) Without limiting the effect generality of such statute or regulation on this AgreementSection 7.06(A), the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating parties to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: this Agreement shall:
(i) promptly notifying the other ofobtain all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities, make all necessary registrations and filings (including filings with Governmental Entities, if any), and if in writingtake all reasonable steps as may be necessary to obtain an approval or waiver from, furnishing the other with copies of (oror to avoid an action or proceeding by, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, Entity;
(ii) permitting file the Certificate of Merger with the Secretary of State of the State of Delaware and make all other party necessary filings to review and discuss in advance, and considering in good faith effectuate the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, Merger;
(iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and use commercially reasonable efforts to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there atobtain all necessary consents, approvals or waivers from third parties;
(iv) furnishing defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and vacated or reversed; and
(v) furnishing executing and delivering any additional instruments necessary to consummate the other party with such necessary information Transactions and reasonable assistance as such other party may reasonably request in connection with its preparation to fully carry out the purposes of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselAgreement.
(bC) The Company FastFind shall give prompt notice to ParentBankrate, and Parent Bankrate or Sub shall give prompt notice to the CompanyFastFind, of (i) any representation or warranty made by it contained in this 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, (ii) the failure by it to comply with or satisfy in any material respect with any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bankrate Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, The Merger Agreement provides that each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this the Merger Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act and the Exon Florxx Xxxndment to the Defense Production Act of 19761950, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five 15 business days after the date hereofFebruary 6, 2001, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any provision of the Company's articles of incorporation, bylaws or state takeover statute or similar statute or regulation is or becomes applicable to this the Merger Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by this the Merger Agreement may be consummated as promptly as practicable on the terms contemplated by this the Merger Agreement and otherwise to minimize the effect of such provision, statute or regulation on this the Merger Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby thereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreementthe Merger Agreement (except such communications which counsel to the Company advises the Company is privileged under the attorney-client privilege or similar privilege), (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there atthereat, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this the Merger Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company , and Parent may, as each deems advisable and necessary, reasonably designate any which is not of a privileged nature or which contains competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) information. The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this the Merger 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, respect or (ii) the 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 the Merger Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED provided that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this the Merger Agreement.
Appears in 1 contract
Samples: Offer to Purchase (Yorkmont One Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company Jade shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Jade 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to Jade upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Parent 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Dominix Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: :
(i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in ARTICLE IV to be satisfied, ;
(ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the any federal, state, local, or foreign governmental authority;
(iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with governmental entities, if any);
(iv) avoiding any suit, claim, action, investigation or proceeding by any governmental entity challenging the making of merger or any other transaction contemplated by this Agreement;
(v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement;
(vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other governmental entity vacated or reversed; and
(vii) executing or delivering any additional instruments reasonably necessary to consummate the transactions contemplated by, and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) JEFE upon becoming aware that any representation or warranty made by it or MMMB contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it MMMB 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) JEFE shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of JEFE 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement and the Shareholders Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Clause 6 to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, filings (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"Act) and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties.
(b) Notwithstanding anything foregoing to the contrary, Parent will not be required to agree to, or proffer to, (i) divest or hold separate any portion of Parent's, the Company's or any of their respective affiliates' businesses or assets, (ii) any operating or similar restrictions or (iii) cease to conduct business or operations in any jurisdiction in which Parent, the Company or any of the Parent's subsidiaries conducts business or operations as of the date of this Agreement. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the OfferShareholders Agreement, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement or the Shareholders Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement or the Shareholders Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement or the Shareholders Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. .
(c) The Company Company, on the one hand, and Parent shall keep and UPC, on the other apprised of the status of matters relating hand, will provide such assistance, information and cooperation to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining each other as is reasonably required to obtain any such waivers, consents, approvals, orders and authorizationsauthorizations and, includingin connection therewith, without limitation: (i) promptly notifying will notify the other ofperson promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and if in writing, furnishing will supply the other person with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger all correspondence between such person or any of its representatives, on the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advanceone hand, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with on the other party in advance and to hand, other than the extent permitted by portions of such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselcorrespondence that include confidential information.
(bd) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate such that the condition set forth in any respect or any such representation or warranty that is Clause 6.2 (a) would not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED provided that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(e) UPC or Parent shall give prompt notice to the Company of any representation or warranty made by them or Merger Sub contained in this Agreement becoming untrue or inaccurate such that the condition set forth in Clause 6.3 (a) would not be satisfied; provided that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Pan Europe Communications Nv)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to Company, RHJI and the Purchasers’ Representative shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with each other in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Acquisition and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. In addition, each Purchaser shall use its 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 Acquisition and any other documents to which such Purchaser is a party delivered in connection with the Acquisition and without limiting the Transactions to the extent reasonably applicable to, or required of, such Purchaser. Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Company and its Representatives shall not be prohibited under this Section 6.03(a) from taking any action permitted by Section 5.02(b). Subject to applicable Law relating to the exchange of information, the Company Board shalland the Purchasers’ Representative and their respective counsel shall have the right to review in advance, if any state takeover statute or similar statute or regulation is or becomes applicable and to this Agreement, the Offer, the Merger or any of extent practicable each shall consult the other transactions contemplated hereby on, any filing made with, or therebywritten materials submitted to, use its commercially reasonable efforts to ensure that any Governmental Entity in connection with the Offer, the Merger Acquisition 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or therebyTransactions. The Company and Parent the Purchasers’ Representative shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting provide the other party and its counsel with the opportunity to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating participate in any meeting with any Governmental Entity unless it consults with the in respect of any filing, investigation or other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request inquiry in connection with its preparation of necessary filings the Acquisition or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(b) The Prior to Closing, the Company shall give prompt notice to Parentthe Purchasers’ Representative, and Parent the Purchasers’ Representative shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall be deemed to be a waiver or cure of any such breach or failure to comply or affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements.
(c) Nothing in Section 6.03(a) shall require any Purchaser 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 Company to commit or agree to any of the foregoing, to obtain any consents, approvals, permits or authorizations to remove any impediments to the Acquisition relating to the HSR Act, any Japanese competition Law or other antitrust, competition or premerger notification, trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the 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.
(d) Nothing in this Section 6.03 shall require the Purchasers’ Representative to (i) consent to any action or omission by the Company that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all commercially reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining defending of all any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, 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 or delivery of any additional instruments reasonably necessary consentsto consummate the transactions contemplated by, approvals and to fully carry out the purposes of, this Agreement; provided, however, that nothing in this Agreement shall require Parent to agree to divestiture material to Parent or waivers from third partiesCompany by Parent or Company or any of Parent’s subsidiaries or affiliates of shares of capital stock or of any business, assets or property of Parent or its subsidiaries or affiliates or Company or its subsidiaries or affiliates or the imposition of any material limitation on the ability of any of them to conduct their businesses or to own or exercise control of such capital stock, assets or properties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Company Voting Agreements or any of the other transactions contemplated hereby or and thereby, use its commercially reasonable efforts to ensure that the OfferMerger, this Agreement, the Merger Company Voting Agreements and the other transactions contemplated by this Agreement hereby and thereby 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 Merger, this Agreement, the Offer, the Merger Company Voting Agreements and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversthereby.
(b) Each of Parent, consents, approvals, orders Merger Sub and authorizations, including, without limitationCompany will notify the other promptly upon the receipt of: (i) promptly notifying the other of, and if in writing, furnishing the other with copies any comments from any officials of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity in connection with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, filings made pursuant hereto; and (ii) permitting the other party any request by any officials of any Governmental Entity for amendments or supplements to review and discuss any filings made pursuant to, or information provided to comply in advance, and considering in good faith the views of one another in connection all material respects with, any proposed written (Legal Requirements. Whenever any event occurs that is required to be set forth in an amendment or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information supplement to any Governmental Entity. The Company and Parent mayfiling made pursuant hereto, as each deems advisable and necessaryParent, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, Merger Sub or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or ParentCompany, as the case may be) , will promptly inform the others of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or its legal counselsupplement.
(bc) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect inaccurate, or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havingin each case, or such that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained set forth in this Agreement to Section 6.3(a) or 6.3(b) would not be satisfied; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(d) Parent shall give prompt notice to Company of any representation or warranty made by it or Merger Sub contained in this Agreement becoming untrue or inaccurate, or any failure of Parent or Merger Sub to comply with or satisfy in any respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Netscreen Technologies Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, Governmental Entity and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its all commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby hereby. Notwithstanding the foregoing or therebyany other provision of this Agreement to the contrary, in no event shall any party hereto be required to agree or proffer to divest or hold separate, or take any other action with respect to, any of the material assets (whether tangible or intangible) or businesses of Parent and its subsidiaries, taken as a whole, or the Company and subsidiaries, taken as a whole, and the Company shall not, and shall not permit any of its subsidiaries to, take any such action with respect to any such assets or businesses without the express written consent of Parent. The Company and Parent shall keep provide such assistance, information and cooperation to each other as is reasonably requested in connection with the foregoing and, in connection therewith, shall notify the other apprised person promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and shall supply the status other person with copies of matters relating all correspondence between such person or any of its representatives, on the one hand, and any Governmental Entity, on the other hand.
(b) The Company, without limiting Section 3.02(m), agrees to provide, and will cause its subsidiaries and its and their respective officers, employees and advisors to provide, all cooperation reasonably necessary in connection with (i) the completion arrangement of any financing to be consummated contemporaneous with or at or after the Closing in respect of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, Agreement and (ii) permitting the other party to review and discuss matters set forth in advanceSection 5.05(b) of the Company Disclosure Schedule. In addition, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults conjunction with the other party in advance and to the extent permitted by obtaining of any such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreementfinancing or otherwise, the Offer and Company agrees, at the Mergerrequest of Parent, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings to call for prepayment or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersredemption, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parentto prepay, repurchase, redeem and/or seek to renegotiate, as the case may be, any then existing indebtedness for borrowed money of the Company; provided, however, that (x) no such prepayment, repurchase or its legal counsel.
(b) The Company redemption shall give prompt notice be required to Parent, and Parent shall give prompt notice be effective prior to the Company, of Effective Time and (iy) any representation or warranty made by it contained in this 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, Parent and its subsidiaries (iiother than the Company and its subsidiaries) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions provide to the obligations of Company on a timely basis all the parties under this Agreementconsideration used in connection with such prepayment, repurchase or redemption.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VII to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all commercially reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining defending of all any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, 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 or delivery of any additional instruments reasonably necessary consentsto consummate the transactions contemplated by, approvals or waivers from third partiesand to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its all commercially reasonable 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 this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent or Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub 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 the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Objective Systems Integrators Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Acquisition and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Company and its Representatives shall not be prohibited under this Section 6.03(a) from taking any action permitted by Section 5.02(b). Subject to applicable Law relating to the exchange of information, the Company Board shalland the Purchaser and their respective counsel shall have the right to review in advance, if any state takeover statute or similar statute or regulation is or becomes applicable and to this Agreement, the Offer, the Merger or any of extent practicable each shall consult the other transactions contemplated hereby on, any filing made with, or therebywritten materials submitted to, use its commercially reasonable efforts to ensure that any Governmental Entity in connection with the Offer, the Merger Acquisition 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or therebyTransactions. The Company and Parent the Purchaser shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting provide the other party and its counsel with the opportunity to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating participate in any meeting with any Governmental Entity unless it consults with the in respect of any filing, investigation or other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request inquiry in connection with its preparation of necessary filings the Acquisition or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(b) The Prior to Closing, the Company shall give prompt notice to Parentthe Purchaser, and Parent the Purchaser shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall be deemed to be a waiver or cure of any such breach or failure to comply or affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements.
(c) Nothing in Section 6.03(a) shall require the Purchaser 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 Company to commit or agree to any of the foregoing, to obtain any consents, approvals, permits or authorizations to remove any impediments to the Acquisition relating to the HSR Act, any Japanese competition Law or other antitrust, competition or premerger notification, trade regulation law, regulation or order ("Antitrust Laws") or to avoid the 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.
(d) Nothing in this Section 6.03 shall require the Purchaser to (i) consent to any action or omission by the Company that would be inconsistent with Section 5.01 absent such consent or (ii) agree to amend or waive any provision of this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Chelsea upon becoming aware that any representation or warranty made by it or Chelsea Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Chelsea Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Chelsea shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Chelsea 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in ARTICLE IV to be satisfied, ; (ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from any federal, state, local or foreign governmental authority (collectively, “Governmental Entities Entities” and the each a “Governmental Entity”); (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Pathworks-Florida upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Pathworks-Florida shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Pathworks-Florida 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (vii) executing or delivering any additional instruments reasonably 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, subject to the other terms and conditions hereof, Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable efforts and take all acts 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent or Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, in each case, where the conditions set forth in Section 6.03(a) or (iiiSection 6.03(b) any change would not be satisfied as a result thereof; provided, however, that no such notification -------- ------- shall affect the representations, warranties, covenants or event having, or that is reasonably likely to have, a Material Adverse Effect on agreements of the notifying party or on the truth of their respective representations and warranties parties or the ability conditions to the obligations of the conditions parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be satisfiedcomplied with or satisfied by it under this Agreement, in each case, where the conditions set forth in Section 6.02(a) or Section 6.02(b) would not be satisfied as a result thereof; PROVIDED provided, however, -------- ------- that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Microchip Technology Inc)
Commercially Reasonable Efforts; Notification. (a) 4.4.1 Upon the terms and subject to the conditions set forth in this Agreement, except as otherwise provided in this Section 4.4, each of Sellers, the parties Company and Buyer agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are necessaryactions, proper and to do, or advisable cause to be done, and to assist and cooperate with the other parties in doing, all things necessary to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementContemplated Transactions, including using all commercially reasonable efforts to accomplish the following: including, without limitation, (i) the taking preparing and filing of all commercially reasonable acts necessary to cause the conditions to the Offer forms, registrations and the Merger notices required to be satisfiedfiled under applicable Law, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities Authorities and the making of all necessary registrations, declarations registrations and filings, filings (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, with Governmental Authorities and as amended, (the "HSR ACT"may be required pursuant to applicable Gaming Laws) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain any required approval, and in consent or waiver from, to provide notice to, or to avoid an Action by, any eventGovernmental Authority, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) defending of any Actions challenging this Agreement or the consummation of the Contemplated Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Contemplated Transactions. In connection with and without limiting Notwithstanding the foregoingforegoing or any other provision of this Agreement to the contrary, the Company in no event shall Buyer be obligated to, and the Company Board shallshall not without the prior written consent of Buyer, if agree or proffer to divest or hold separate, or enter into any state takeover statute licensing, business restriction or similar statute arrangement with respect to, any assets (whether tangible or regulation is intangible) or becomes applicable any portion of any business of Buyer, its Affiliates or the Company, in each case in response to a request by or discussion with a Governmental Authority in order to address any regulatory issues associated with or arising from the Contemplated Transactions, nor shall Buyer be obligated to (i) consent to any change in the terms of any agreement or arrangement which Buyer in its reasonable discretion deems materially adverse to the interests of Buyer or the Company, or (ii) incur any material expenses (except as expressly contemplated by this Agreement), or agree to materially limit the Offer, the Merger conduct of its (or any of its Subsidiaries’ or Affiliates’, or the other transactions contemplated hereby Company’s) business or therebydivest itself (or any of its Subsidiaries or Affiliates, or the Company) of any assets or properties. Buyer agrees to use its commercially reasonable efforts to ensure that prepare and file, on or prior to the Offer, sixtieth (60th) day after 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 date of such statute or regulation on this Agreement. those forms, applications, notices or registrations that are required for Buyer to initiate the Offer, processes required to obtain the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel onlyKey Gaming Approvals." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Starwood and TriNet agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other 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 effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreementhereby, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval, as amendedwaiver or exemption from, or to avoid an action or proceeding by, any Governmental Entity, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals approvals, waivers or waivers exemption from non-governmental third parties. In connection with and without limiting ; (iii) the foregoingdefending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Merger, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this AgreementAdvisor Transaction, the Offer, the Incorporation Merger or any the consummation of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Advisor Transaction Agreement, the Offer Incorporation Merger Agreement and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings Ancillary Agreements including seeking to have any stay or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.temporary
Appears in 1 contract
Samples: Merger Agreement (Trinet Corporate Realty Trust Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: :
(i1) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article IV to be satisfied, ;
(ii2) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the any federal, state, local or foreign governmental authority;
(3) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any);
(4) avoiding any suit, claim, action, investigation or proceeding by any governmental entity challenging the making of merger or any other transaction contemplated by this Agreement;
(5) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement;
(6) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other governmental entity vacated or reversed; and
(7) executing or delivering any additional instruments reasonably necessary to consummate the transactions contemplated by, and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) TW upon becoming aware that any representation or warranty made by it or Acquisition Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Acquisition Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) TW shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of TW 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Surge Holdings, Inc.)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement and the Stockholders Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended, (the "HSR ACT") and the relevant foreign European antitrust laws as promptly as reasonably practicable, and in any event, within five 15 business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Stockholders Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement or the Stockholders Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement or the Stockholders Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement or the Stockholders Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent Rexam shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there atthereat, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent Rexam may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or ParentRexam, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to ParentRexam, and Parent Rexam shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rexam Acquisition Subsidiary Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreementhereby, including using all its commercially reasonable efforts to accomplish the followingfollowing as promptly as reasonably practicable following the date of this Agreement: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, Governmental Entity and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement hereby 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselhereby.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate such that the condition set forth in any respect or any such representation or warranty that is Section 6.02(a) would not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED PROVIDED, HOWEVER, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to the Company of any representation or warranty made by it or Merger Sub contained in this Agreement becoming untrue or inaccurate such that the condition set forth in Section 6.03(a) would not be satisfied; PROVIDED, HOWEVER, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, as promptly as practicable the Offer, the Merger and the other transactions contemplated by this AgreementShare Purchase, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactionsnon-actions, waiverswaivers and Consents from, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings with and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, reasonable steps as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 necessary to avoid a proceeding by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to this Agreement or the Offer, the Merger or any of the other transactions contemplated by this AgreementShare Purchase, (ii) permitting the defending or contesting of any proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Share Purchase, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Share Purchase and to fully carry out the purposes of this Agreement.
(b) The Buyer and the Sellers shall, in consultation and cooperation with the other and as promptly as practicable (but in no event later than fifteen business days after the date of this Agreement, subject to reasonably adequate cooperation by the Company with the Buyer and the Sellers in connection with such filings), file (i) with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Share Purchase and (ii) all appropriate filings required under any Foreign Merger Control Law. Any such filings shall be in substantial compliance with the requirements of the HSR Act or the applicable Foreign Merger Control Law, as the case may be. Each of the Buyer and the Sellers shall (i) furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission which is necessary under the HSR Act or any Foreign Merger Control Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Share Purchase, and permit the other party to review and discuss in advance, and considering consider in good faith the views of one another of, and secure the participation of, the other party in connection with, any proposed written (such filings, submissions, communications, inquiries or material proposed oral) communication with any Governmental Entityrequests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participating participate in or attend any meeting, or engage in any meeting substantive conversation, with any Governmental Entity unless it consults with in respect of the Share Purchase without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in advance and to the extent permitted event one party is prohibited by such applicable Law or by the applicable Governmental Entity gives the other from participating in or attending any such meeting or engaging in any such conversation, keep such party the opportunity to attend and participate there atapprised with respect thereto, (ivD) furnishing cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement or the Share Purchase, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all correspondencefilings, filings submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this AgreementAgreement or the Share Purchase and (iv) comply with any inquiry or request from the FTC, the Offer and the Merger, and (v) furnishing the DOJ or any other party with Governmental Entity as promptly as reasonably practicable. Any such necessary additional information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to in substantial compliance with the outside legal counsel requirements of the recipient and will not be disclosed by such outside counsel to employees, officers, HSR Act or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parentapplicable Foreign Merger Control Law, as the case may be. The Buyer agrees not to extend, directly or indirectly, any waiting period under the HSR Act or any Foreign Merger Control Law or enter into any agreement with a Governmental Entity to delay or not to consummate the Share Purchase, except with the prior written consent of the Sellers, which consent may be withheld in their sole discretion. Notwithstanding anything to the contrary set forth herein, none of the parties hereto shall be required to disclose to any of the other parties any of its respective “4(c) or its legal counseldocuments,” as such term is commonly understood.
(bc) The Company If a Governmental Clarification states or implies, in the Sellers’ reasonable determination, that the Share Purchase should be structured or effected or documented in a particular manner in order more clearly to comply fully with the terms of such Governmental Clarification, at the Sellers’ request the parties will discuss in good faith any pre-Closing modifications or adjustments reasonably proposed by the Sellers in order to ensure such full compliance and following such discussions shall give prompt notice agree upon such pre-Closing modifications to Parentsuch matters as are necessary, and Parent shall give prompt notice to provided that such modifications do not adversely affect the Buyer’s or the Company, of (i) any representation ’s economic or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue legal position or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementrisk.
Appears in 1 contract
Samples: Share Purchase Agreement (GLORY INVESTMENTS TA IV LTD)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all their respective commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings reasonable steps as may be necessary to obtain any necessary approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, including, without limitation, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amendedHSR Act, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any shall (A) take all commercially reasonable action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement or any other Transaction Agreement, the Offer, the Merger and (B) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any of the other transactions contemplated hereby or therebyTransaction Agreement, use its take all commercially reasonable efforts 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby Transactions.
(b) Notwithstanding anything to the contrary in this Agreement, (i) the Company shall not, without Parent's prior written consent, commit to any divestitures, licenses, hold separate arrangements or thereby. similar matters, including, without limitation, covenants affecting business operating practices (or allow its Subsidiaries to commit to any divestitures, licenses, hold separate arrangements or similar matters), and the Company shall commit to, and shall use its reasonable best efforts to effect (and shall cause its Subsidiaries to commit to and use their reasonable best efforts to effect), any such divestitures, licenses, hold separate arrangements or similar matters as Parent shall request, but solely if such divestitures, licenses, hold separate arrangements or similar matters are contingent on consummation of the Offer and (ii) neither Parent nor any of its Subsidiaries shall be required to agree (with respect to (A) Parent or its Subsidiaries or (B) the Company or its Subsidiaries) to any divestitures, licenses, hold separate arrangements or similar matters, including, without limitation, covenants affecting business operating practices.
(c) The Company and Parent each shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversby the Transaction Agreements, consents, approvals, orders and authorizations, including, without limitation: (i) including promptly notifying the other of, and if in writing, furnishing the other with copies of (ornotice or other communications received by Parent or the Company, in as the case may be, or any of material oral communicationsits Subsidiaries, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel onlyTransactions." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ual Corp /De/)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all their commercially reasonable efforts (subject to paragraph (b) below) to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Offer and the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all steps as promptly as reasonably practicablemay be necessary to avoid an action or proceeding by any Governmental Entity, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary material consents, approvals or waivers from third parties, 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 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 the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger Merger, this Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its their commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby by this Agreement. Nothing herein shall limit or therebyaffect the Company's taking actions specifically permitted by Section 6.05(b) and (c). The In furtherance of and without limiting the above provisions, each of the Company and Parent shall keep shall, as promptly as practicable following the execution and delivery of this Agreement, 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 five (5) Business Days after the date of this Agreement) and, if so requested by the other apprised such party, request early termination of the status of matters relating to waiting period thereunder and file with the completion 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 work cooperatively regulations and, in each case, any supplemental information requested in connection therewith pursuant to the HSR Act or such other Laws or regulations. Any such notification and report form and supplemental information shall be in substantial compliance with obtaining any such waivers, consents, approvals, orders the requirements of the HSR Act and authorizations, including, without limitation: (i) promptly notifying other relevant Law or regulation. Each of the Company and Parent shall furnish to the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such the other party may reasonably request in connection with its preparation of any filing or submission which is necessary filings under the HSR Act and other relevant Law or submissions of information to any Governmental Entityregulation. The Company and Parent mayshall cooperate and keep each other apprised of the status of any communications with, as and any inquiries or requests for additional information from, the FTC, the DOJ, or any other Governmental Entity, and shall comply promptly with any such inquiry or request. The Company and Parent shall use commercially reasonable efforts to permit each deems advisable other party (or its respective counsel) to review any material communication given by it to, and necessaryconsult with each other in advance of any meeting or conference with, reasonably designate the FTC, the DOJ or any competitively sensitive material provided such other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or other such Governmental Entity or other Person, give the other party (or its respective counsel) the opportunity to attend and participate in such meetings and conferences. The parties hereby agree that neither party will be required to take any action including, without limitation, the proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of assets or businesses of Parent (or any of its Subsidiaries) or otherwise taking or committing to take actions that after the Closing Date would limit Parent or its Subsidiaries' freedom of action with respect to, or its ability to retain, one or more of its Subsidiaries' businesses, product lines or assets. Notwithstanding the foregoing, Parent agrees that, if necessary to eliminate an impediment under any antitrust law that may be asserted by a U.S. governmental antitrust authority to the transactions contemplated hereby, Parent will consent to the reasonable sale or disposition of one or more of the Company's Titles; provided, however, that (a) Parent shall not be required to consent to the divestiture of any of its or its affiliates' pre-Closing assets, (b) the divestiture of Titles that produced aggregate net revenues for the 12-month period ended June 30, 2001 of up to $2.0 million shall be deemed reasonable within the meaning of this sentence, and the divestiture of Titles in excess of such amount shall not be required, and (c) Parent shall not be required to consent to any divestiture that must be consummated prior to the Effective Time. 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 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 Law, each of the parties shall cooperate in all respects with each other and use its respective commercially reasonable 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. 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 Schedule 14D-9 and the Offer Documents, respectively, which the respective party responsible therefor shall reasonably request. 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 as "outside counsel only6.06." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, Vornado, the Operating Partnership and the members of the Mendik Group shall: (i) use all commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the conditions set forth Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the Transactions and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Consolidation, such consents to be in form reasonably satisfactory to the Operating Partnership, Vornado and the Mendik Group; and (iii) use all commercially reasonable efforts to take, or cause to be taken, all other actions that are and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the OfferTransactions. If, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in at any event, within five business days time after the date hereofEffective Time, and (iii) any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offerproper officers and trustees of Vornado, and, where appropriate, the Merger or any proper representatives of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger Operating Partnership 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 this AgreementMendik Group, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of take all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselaction.
(b) The Company Operating Partnership and the Mendik Group shall give prompt notice to ParentVornado, and Parent Vornado or Vornado Sub shall give prompt notice to the CompanyOperating Partnership and the Mendik Group, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Master Consolidation Agreement (Vornado Realty Trust)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this AgreementAgreement and until such time as this Agreement is terminated in accordance with its terms, each of the parties agrees to shall use all commercially reasonable efforts efforts, subject to SECTION 6.04, to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations Consents from Governmental Entities and the making of all necessary registrationsregistrations and filings with, declarations and filings, including the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, any Governmental Entity, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals or waivers from third parties (other than any consents, approvals and waivers set forth in SECTION 3.04 of the Company Disclosure Letter and SECTION 4.05 of the Purchaser Disclosure Letter, which shall be governed by SECTION 6.04 of this Agreement), (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (iv) the providing of other information and communications to such Governmental Entities or other third parties as the Governmental Entities or other third parties, as applicable, may reasonably request in connection therewith and (v) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shallshall (x) take all action necessary to ensure, if any necessary, that no state takeover statute or similar statute or regulation is or becomes applicable to the Merger or this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 Merger. Nothing in this AgreementAgreement shall be deemed to require any party to waive any substantial rights or agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent its Representatives shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining not be prohibited under this SECTION 6.03(a) from taking any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent action permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselSECTION 5.02.
(b) The Company shall give prompt notice to IOS and Parent, and each of IOS, Parent or Merger Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change notice or event havingother communication from any person alleging that the Consent of such person is or may be required in connection with the transactions contemplated by this Agreement, and (iv) any actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company, on the one hand, or that is reasonably likely IOS, Parent or Merger Sub, on the other hand, which relate to have, the consummation of the transactions contemplated by this Agreement or which would have a Company Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfiedPurchaser Material Adverse Effect, as applicable; PROVIDED PROVIDED, HOWEVER, that no such notification shall affect the be deemed to have modified, or to have cured a breach of, any representations, warranties, covenants or agreements of the parties hereunder or to have altered or waived the conditions to the obligations of the parties under this Agreement. The 34 Company will use its commercially reasonable efforts to cure before the Closing, any event, transaction or circumstance, as soon as practicable after it becomes known to the Company, that causes or will cause any covenant or agreement of the Company under this Agreement to be breached, that renders or will render untrue any representation or warranty of the Company contained in this Agreement or that would cause any condition contained in this Agreement not to be satisfied. IOS and Parent will each use its commercially reasonable efforts to cure before the Closing, any event, transaction or circumstance, as soon as practicable after it becomes known to IOS or Parent, that causes or will cause any covenant or agreement of IOS, Parent and/or Merger Sub, as the case may be, under this Agreement to be breached, that renders or will render untrue any representation or warranty of IOS, Parent and/or Merger Sub contained in this Agreement or that would cause any condition contained in this Agreement not to be satisfied. Nothing in this Agreement shall be deemed to require any party to agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets.
Appears in 1 contract
Samples: Merger Agreement (FTD Com Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms Each of Parent, Merger Sub and subject to the conditions set forth in this Agreement, each of the parties Company agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: :
(i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ;
(ii) the obtaining of all necessary actions or nonactionsApprovals from, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings with, all third parties (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976but not limited to Governmental Entities) required as a result of, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and or in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoingwith, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, whether or not required under any proposed written (or material proposed oral) communication with any Governmental Entity, Contract;
(iii) not participating in the defending of any meeting with suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, vacated or reversed; and
(iv) furnishing the other party with copies execution or delivery of all correspondenceany additional instruments necessary to consummate the transactions contemplated by, filings and communications (and memoranda setting forth to fully carry out the substance thereof) between it and any Governmental Entity with respect to purposes of, this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Each of Parent, Merger Sub and Parent shall Company will give prompt notice to the Company, of (i) others upon becoming aware that any representation or warranty made by it contained in this 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 has become untrue or inaccurate in any material respect, (ii) the or of any material failure by of 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. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.4(b) requires any material change in the Company Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Company Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Company will promptly deliver to the other an update to the applicable schedule specifying such change. No such update will be deemed to supplement or amend the Company Schedule for the purpose of determining (iiii) the accuracy of any change or event having, or that is reasonably likely to have, a Material Adverse Effect on of the notifying party or on the truth of their respective representations and warranties or the ability made in this Agreement, and (ii) whether any of the conditions contained set forth in this Agreement to be Article VI have been satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Avi Biopharma Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Aster upon obtaining knowledge that any representation or warranty made by it it, or Arkados contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Arkados 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Aster shall give prompt notice to Parent upon obtaining knowledge that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Aster 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective effective, in the Offermost reasonably expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementAgreement and to use its commercially reasonable efforts to forebear from taking any actions that would cause the Merger and the other transactions contemplated by this Agreement not to be consummated and made effective in the most reasonably expeditious manner practicable, including using all its commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts actions necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from from, and the giving of any necessary notices to, Governmental Entities and the making of all necessary registrations, declarations and filings, filings (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976and other registrations, as amendeddeclarations and filings with, or notices to, Governmental Entities, if any), (iii) the "HSR ACT") and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any event, within five business days after the date hereof, Governmental Entity and (iiiiv) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the generality of the foregoing, each of the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby by this Agreement. Notwithstanding the foregoing or therebyany other provision of this Agreement to the contrary, in no event shall any party hereto be obligated to, and the Company and its subsidiaries shall not, (A) agree or proffer to divest or hold separate, or enter into any licensing or similar arrangement with respect to, any assets (whether tangible or intangible) or any portion of any business of Parent, the Company or any of their respective subsidiaries or (B) litigate any suit, claim, action, investigation or proceeding, whether judicial or administrative, brought by any Governmental Entity (1) challenging or seeking to restrain or prohibit the consummation of the Merger; (2) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective affiliates of any portion of the business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, or to require any such person to dispose of or hold separate any portion of the business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, as a result of the Merger; (3) seeking to impose limitations on the ability of Parent or any of its affiliates to acquire or hold, or exercise full rights of ownership of any shares of common stock of the Surviving Corporation, including the right to vote the common stock of the Surviving Corporation on all matters properly presented to the stockholders of the Surviving Corporation; or (4) seeking to prohibit Parent or any of its affiliates from effectively controlling the business or operations of the Company and its subsidiaries, taken as a whole. The Company and Parent shall keep the provide such assistance, information and cooperation to each other apprised of the status of matters relating as is reasonably required to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining obtain any such non-actions, waivers, consents, approvals, orders and authorizationsauthorizations and, includingin connection therewith, without limitation: (i) promptly notifying will notify the other ofperson promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with, or notice to, such Governmental Entity and if in writing, furnishing shall supply the other person with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger all correspondence between such person or any of its representatives, on the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advanceone hand, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with on the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselhand.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate such that the condition set forth in any respect Section 6.02(a) would not be satisfied or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by of it to comply with or satisfy perform in any material respect any covenant, condition or agreement obligation to be complied with or satisfied performed by it under this Agreement, or (iiiAgreement such that the condition set forth in Section 6.02(b) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to would not be satisfied; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants covenants, agreements or agreements obligations of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to the Company of (i) any representation or warranty made by it or Sub contained in this Agreement becoming untrue or inaccurate such that the condition set forth in Section 6.03(a) would not be satisfied or (ii) the failure of it or Sub to perform in any material respect any obligation to be performed by such party under this Agreement such that the condition set forth in Section 6.03(b) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants, agreements or obligations of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under this Agreement.
(d) Without limiting the generality of the foregoing, the Company shall give Parent the opportunity to participate in the defense of any litigation against the Company and/or its directors relating to this Agreement, the Merger and the other transactions contemplated by this Agreement, it being understood and agreed that this Section 5.03(d) shall not give Parent the right to direct such defense.
Appears in 1 contract
Samples: Merger Agreement (Corio Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in ARTICLE IV to be satisfied, ; (ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from any federal, state, local or foreign governmental authority (collectively, “Governmental Entities Entities” and the each a “Governmental Entity”); (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Nile upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Nile shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Nile 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Smi Products Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions conditions, including, without limitation, Section 5.4, set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated by this Agreement, (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution or 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 each of Parent and Company and the Company Board their respective Boards of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its all commercially reasonable 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent, Company or any subsidiary or Affiliate of Parent or Company to agree to any divestiture by itself or any of its Affiliates of shares of capital stock or the other transactions contemplated by this Agreementimposition of any material limitation on the ability of any of them to conduct their business or to own or exercise control of such assets, (ii) permitting the other party to review properties and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselstock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this 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 has become untrue or inaccurate in any material respect, (ii) the or of any failure by it of Company 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. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.6(b) requires any change in the Company Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Company Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Company shall promptly deliver to Parent an update to the Company Schedule specifying such change. No such update shall be deemed to supplement or amend the Company Schedule for the purpose of determining (iiii) the accuracy of any change or event having, or that is reasonably likely to have, a Material Adverse Effect on of the notifying party or on the truth of their respective representations and warranties or the ability made by Company in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied; provided that, although Parent shall have the right to terminate this Agreement as a result of such change if it would otherwise be entitled to do so pursuant to Section 7.1, if the Closing occurs, Parent shall be deemed to have waived any claim for indemnification under the Shareholder Agreements as a result of such change.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate in any material respect, or of any failure of Parent or Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants complied with or agreements of the parties or the conditions to the obligations of the parties satisfied by it under this Agreement. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.6(c) requires any change in the Parent Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Parent Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Parent shall promptly deliver to Company an update to the Parent Schedule specifying such change. No such update shall be deemed to supplement or amend the Parent Schedule for the purpose of determining (i) the accuracy of any of the representations and warranties made by Parent and Merger Sub in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to hereto shall use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementAgreement and the other Transaction Agreements, including using all commercially reasonable efforts to accomplish the following: (i) the taking fulfillment of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfiedset forth in Article 8 hereof, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties, and (iv) the execution and delivery, prior to or following the Closing, of any additional instruments necessary to consummate the transactions contemplated by this Agreement and the other Transaction Agreements and to fully carry out the purposes of this Agreement and the Transaction Agreements. In connection with and without limiting the foregoing, each of the Sellers, the Company and the Company Board shall, if any Paramount shall (x) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any other Transaction Agreement, the Offer, the Merger or any of the other transactions contemplated hereby and thereby and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, any Transaction Agreement or any transaction contemplated hereby or thereby, use its commercially reasonable efforts take all action necessary to ensure that the Offer, the Merger and the other such 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransaction Agreements.
(b) The Sellers and the Company shall give prompt notice to ParentParamount, and Parent Paramount shall give prompt notice to the Sellers and the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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 or any Transaction Agreement; provided, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement or the Transaction Agreements. The Sellers and the Company will use all commercially reasonable efforts to cure, before the Closing, any violation or breach of any representation, warranty, covenant or agreement made by the Sellers in this Agreement, whether occurring or arising before, on or after the date of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Paramount Acquisition Corp)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, filings (including the making of all filings with Governmental Entities that may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended, (the "HSR ACT"or otherwise) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any event, within five business days after the date hereof, and Governmental Entity; (iiiii) 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, 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 and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, Parent agrees to give the Company reasonable notice of any meetings prior to the Closing Date with any Governmental Entity regarding the Transactions and the Company, at its option, may have representatives at such meetings. In addition, the Company and the Company Board 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 any Transaction or this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent or Sub shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (MSC Software Corp)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions actions, that are necessary, proper or advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer precedent set forth in Exhibit A and the Merger Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval or waiver from, as amendedor to avoid an action or proceeding by, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, Governmental Entity and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or therebyhereby, use its commercially reasonable efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement hereby 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby hereby. Notwithstanding the foregoing or therebyany other provision of this Agreement to the contrary, in no event shall Parent or Sub be required to agree or proffer to divest or hold separate, or take any other action with respect to, any of the assets (whether tangible or intangible) or businesses of Parent and its subsidiaries, taken as a whole, or the Company and subsidiaries, taken as a whole, and the Company shall not, and shall not permit any of its subsidiaries to, take any such Table of Contents action with respect to any such assets or businesses without the express written consent of Parent. The Company and Parent shall keep the provide such assistance, information and cooperation to each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively as is reasonably requested in connection with obtaining any such waiversthe foregoing and, consentsin connection therewith, approvals, orders and authorizations, including, without limitation: (i) promptly notifying shall notify the other ofperson promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and if in writing, furnishing shall supply the other person with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger all correspondence between such person or any of its representatives, on the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advanceone hand, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with on the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel onlyhand." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, Vornado and SCR shall: (i) use all commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the conditions set forth Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities and any third parties in connection with the execution and delivery of this Agreement, each Agreement and the consummation of the Merger and the other transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Merger, such consents to be in form reasonably satisfactory to Vornado and SCR; and (iii) use all commercially reasonable efforts to take, or cause to be taken, all other actions that are and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in Merger. If at any event, within five business days time after the date hereofEffective Time, and (iii) any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offerproper officers and trustees of Vornado, and, where appropriate, the Merger or any proper representatives of the other transactions contemplated hereby or therebySCR, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of take all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counseldesirable action.
(b) The Company SCR shall give prompt notice to ParentVornado, and Parent Vornado shall give prompt notice to the CompanySCR, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Starwood and TriNet agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other 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 effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreementhereby, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval, as amendedwaiver or exemption from, or to avoid an action or proceeding by, any Governmental Entity, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals approvals, waivers or waivers exemption from non-governmental third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Merger, the Advisor Transaction, the Incorporation Merger or the consummation of the transactions contemplated by this Agreement, the Advisor Transaction Agreement, the Incorporation Merger Agreement and the other Ancillary Agreements 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 fully to carry out the purposes of, this Agreement, the Advisor Transaction Agreement, the Incorporation Merger Agreement and the other Ancillary Agreements. In connection with and without limiting the foregoing, the Company TriNet, Starwood and the Company Board shalltheir respective Boards of Directors or Trustees, if as applicable, shall (x) 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 this Agreement, the Offer, the Merger or the Advisor Transaction, and (y) if any of the other transactions contemplated hereby or therebyTakeover Statute becomes applicable, use its commercially reasonable efforts to ensure take all action necessary so that the Offer, Merger or the Merger and the other transactions contemplated by this Agreement Advisor Transaction may be consummated as promptly as practicable on the terms contemplated by this Agreement or the Advisor Transaction Agreement, as applicable, and otherwise to minimize the effect of such statute or regulation Takeover Statute on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or therebyAdvisor Transaction. The Company and Parent From the date hereof through the Effective Time, TriNet shall keep timely file with the other apprised SEC all TriNet SEC Documents required to be so filed. From the date hereof through the Effective Time, Starwood shall timely file with the SEC all Starwood SEC Documents required to be so filed. Subject to the provisions of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Advisor Transaction Agreement, the Offer Incorporation Merger Agreement and Section 2.1(b)(ii), Starwood shall consummate the Advisor Transaction and the Merger, and (v) furnishing Incorporation Merger as promptly as reasonably practicable following the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings satisfaction or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability waiver of the conditions contained set forth in Article VI of this Agreement. Without the consent of TriNet (which will not unreasonably be withheld or delayed), Starwood will not consent to any amendment or other modification, waive any material right or condition under the Advisor Transaction Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to Incorporation Merger Agreement or terminate the obligations of the parties under this Advisor Transaction Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, Capital and Trust shall: (a) to the conditions set forth extent required, promptly make their respective filings and thereafter make any other required submissions under the HSR Act with respect to the Merger; (b) use all commercially reasonable efforts to cooperate with one another in (i) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the transactions contemplated by such agreements and (ii) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (c) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Merger, such consents to be in reasonably satisfactory form to Capital and Trust; and (d) use all commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. If, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in at any event, within five business days time after the date hereofEffective Time, and (iii) any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any proper officers and directors of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger Capital 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent Trust shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of take all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselaction.
(b) The Company Trust and Capital shall use commercially reasonable efforts to proceed as promptly as possible to cause the Exemptive Order to be issued and shall negotiate in good faith with each other as to any amendment to this Agreement that may be necessary to comply with any condition of the Exemptive Order that are inconsistent with this Agreement.
(c) Capital shall give prompt notice to ParentTrust, and Parent Trust shall give prompt notice to the CompanyCapital, of if (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, the Purchaser and Seller shall: use all commercially reasonable efforts to cooperate with one another in determining which filings are required to be made prior to the conditions set forth Closing with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Closing from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the transactions contemplated by such Agreement and (ii) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations, (b) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the transactions contemplated by this Agreement, such consents to be in reasonably satisfactory form to the Seller and Purchaser; and (c) use all commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. In furtherance of the foregoing, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer Seller and the Merger Purchaser acknowledge that they have each reviewed and approved documentation to be satisfiedentered into effective as of the Closing Date between the Purchaser (or the applicable Seller Subsidiary or Purchaser Subsidiary) and Xxxxx Interests Limited Partnership (Xxxxx) which evidences the agreement with Xxxxx regarding the respective rights, (ii) duties and obligations from and after the obtaining Closing Date of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities Xxxxx and the making Seller Subsidiary or Subsidiaries which are the partners with Xxxxx in the partnerships which are the fee simple owners of all necessary registrationsthe Seller Properties described on Schedule 1.01(l) hereof in items (6) and (7) [500 Boylston and 222 Berkeley], declarations and filings, including such documentation being in the making form of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, documents attached hereto as amended, EXHIBIT 5.04(C)(I) (the "HSR ACT500 BOYLSTON AND 222 BERKELEY AMENDMENTS") (the form and substance of which the parties have approved) and that each of the Purchaser and the relevant foreign antitrust laws Seller shall use their best efforts to obtain Xxxxx' agreement to enter into the 500 Boylston and 222 Berkeley Amendments (or documents in a form substantially similar thereto) to be effective as promptly of the Closing Date. In addition, the Seller and the Purchaser acknowledge that they have proposed to C-H Associates, Ltd. ("CHV"), a partner in One Ninety-One Peachtree Associates, the Joint Venture which owns the Seller Property known as One Ninety-One Peachtree, certain revisions to the Joint Venture Agreement governing the Joint Venture known as One Ninety-One Peachtree Associates. The substance of the proposed amendments are described in the letter to CHV dated August 1, 1997, attached hereto as EXHIBIT 5.04(C)(II) which terms have been approved by the parties. The Purchaser and Seller agree that they will reasonably practicableapprove amendments to the Joint Venture Agreement of One Ninety-One Peachtree Associates to reflect the terms set forth in the attached letter and that they shall each use their best efforts to obtain the agreement of CHV to enter into such an amendment to be effective as of the Closing Date. If, and in at any event, within five business days time after the Closing, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of the Purchaser and Seller shall take all such necessary action.
(b) Prior to the Closing, the Seller and the Purchaser shall deliver to the other information supplementing or amending the representations, warranties, Schedules and other disclosures provided in Articles III and IV of this Agreement to set forth the information relating to any event or circumstance arising after date hereofof this Agreement, or, with respect to matters that are limited to the Knowledge of either party, information that becomes a matter within the Knowledge of such party following the date of this Agreement, in order to make such representations and warranties, Schedules or other disclosures complete and accurate as of the date of such supplement or amendment. Each representation or warranty contained herein and the statements contained in Articles III and IV (iiiincluding the Schedules hereto and the other disclosures) shall be deemed to have been amended by any such supplement or amendment. All references herein to any such representation, warranty or statement (including the obtaining of all necessary consentsSchedules hereto and other disclosures) provided hereby, approvals to the extent such supplement or waivers from third partiesamendment refers specifically to such representation, warranty or statement, shall be deemed to refer to the same as so amended or supplemented. In connection with and without Without limiting the foregoing, the Company Seller covenants and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to agrees that within thirty (30) days of this Agreement, the Offer, Seller shall provide to the Merger or any Purchaser an unaudited consolidated balance sheet of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger Seller and the other transactions contemplated Seller Subsidiaries as of June 30, 1997, and the related consolidated statements of income, retained earnings, stockholders' equity and changes in financial position of the Seller, together with all related notes and schedules thereto, reviewed by this Agreement may Coopers & Xxxxxxx, L.L.P. (the Interim Financial Statements). The Interim Financial Statements will consist only of normal recurring accruals necessary to summarize fairly the unaudited results of operations for the six month period. The Interim Financial Statement shall be consummated as promptly as practicable deemed to constitute a supplement to the Seller's representations and warranties under SECTION 3.07 hereto and shall give rise to a termination right on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised part of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (iPurchaser under SECTION 7.01(a) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and hereof to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and Interim Financial Statements disclose any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Seller Material Adverse Effect on since the notifying date of this Agreement (as determined by reference to the Reference Balance Sheet and the Seller's representations under SECTIONs 3.06 and 3.07 hereof.) Any other amendments or supplements given to either party pursuant to this SECTION 5.04(b) may be a basis for the termination of this Agreement as provided for in SECTIONs 9.01(b) and 9.02(c); provided the terminating party exercises its right to terminate this Agreement under SECTION 9.01(b) or on the truth of their respective representations and warranties or the ability 9.02(c), as applicable, with twenty (20) days after receipt of the conditions contained in this Agreement amending or supplementary information giving rise to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementtermination right.
Appears in 1 contract
Samples: Stock Purchase Agreement (Dutch Institutional Holding Co Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking making of all commercially reasonable acts necessary to cause the conditions to the Offer registrations and the Merger to be satisfiedfilings (including filings with Governmental Entities and Regulatory Agencies, if any), (ii) the obtaining of all necessary actions or nonactionsactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from Governmental Entities, Regulatory Agencies and other third parties, (iii) the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or Regulatory Agency, (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, (v) the defending of any lawsuits or other legal proceedings, brought by third parties (other than Governmental Entities) challenging this Agreement or the consummation of the transactions contemplated hereby or thereby, including using commercially reasonable efforts to lift, rescind or mitigate the effect of any injunction or restraining order or other order adversely affecting the ability of any party hereto to consummate the transactions contemplated hereby, (vi) the taking of all reasonable actions to fulfill the conditions to the obligations of CTI or Novuspharma set forth in Article VI of this Agreement, and (vii) the using of all reasonable efforts to prevent, with respect to a threatened or pending temporary, preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order, the entry, enactment or promulgation thereof, as the case may be; provided, however, that neither CTI nor Novuspharma shall be obligated to take any action pursuant to the foregoing if the taking of such action or the obtaining of any waiver, consent, approval or exemption is reasonably likely to be materially burdensome to Novuspharma or CTI and its subsidiaries (taken as a whole) or to impact in a materially adverse manner the economic or business benefits of the transactions contemplated by this Agreement so as to render inadvisable the consummation of the Merger. In connection with and without limiting the foregoing, the Company CTI and the Company Board shall, if any Novuspharma and members of their respective Boards of Directors shall (1) grant such approvals and take all such other actions as may be necessary so that no United States federal or state or Italian takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby by this Agreement, and (2) if any United States federal or therebystate or Italian takeover statute or similar statute or regulation becomes applicable to the Merger, this Agreement or any other transaction contemplated by this Agreement, use its commercially reasonable 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 hereby and thereby and otherwise to eliminate or minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice Notwithstanding anything in this Agreement to the Companycontrary, of (i) any representation or warranty made by it nothing contained in this Agreement that is qualified shall be deemed to require any party hereto to take or agree to take any Action of Divestiture (as defined below). For purposes of this Agreement, an "Action of Divestiture" shall mean making proposals, executing or carrying out agreements or submitting to materiality becoming untrue Judgments providing for the license, sale or inaccurate in any respect other disposition or any such representation holding separate (through the establishment of a trust or warranty that is not so qualified becoming untrue or inaccurate in otherwise) of any material respect, (ii) assets or categories of material assets or the failure by it holding separate of Novuspharma Ordinary Shares or imposing or seeking to comply with or satisfy impose any limitation on the ability of any party hereof to conduct its respective business in any material respect any covenantor own such assets or to acquire, condition hold or agreement to be complied with or satisfied by it under this Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth exercise full rights of their respective representations and warranties or the ability ownership of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this AgreementNovuspharma's business.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, unless, to the extent permitted by Section 4.4(b) or 4.5(b), the Board of Directors of Greenwich or the Parent approves or recommends a Superior Greenwich Proposal or Superior Parent Proposal, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in ARTICLE VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Greenwich upon becoming aware that any representation or warranty made by it or VQ Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it VQ Merger Sub 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Greenwich shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Greenwich 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 the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (aA) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to shall take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Offereffective, in an expeditious manner, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicableTransactions, and in any event, within five business days after the date hereof, and (iii) the obtaining of shall take all action necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts 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 Agreement.
(B) Without limiting the effect generality of such statute or regulation on this AgreementSection 7.05(A), the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating parties to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: this Agreement shall:
(i) promptly notifying the other ofobtain all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities, make all necessary registrations and filings (including filings with Governmental Entities, if any), and if in writingtake all reasonable steps as may be necessary to obtain an approval or waiver from, furnishing the other with copies of (oror to avoid an action or proceeding by, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, Entity;
(ii) permitting file the Certificates of Merger with the Secretary of State of the applicable State(s) and make all other party necessary filings to review and discuss in advance, and considering in good faith effectuate the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, Mergers;
(iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and use commercially reasonable efforts to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there atobtain all necessary consents, approvals or waivers from third parties;
(iv) furnishing use commercially reasonable efforts to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and vacated or reversed; and
(v) furnishing execute and deliver any additional instruments necessary to consummate the other party with such necessary information Transactions and reasonable assistance as such other party may reasonably request in connection with its preparation to fully carry out the purposes of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselAgreement.
(bC) The Company MMIS shall give prompt notice to ParentBankrate, and Parent Bankrate and the Subs shall give prompt notice to the CompanyMMIS, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the failure by it to comply with or satisfy in any material respect with any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bankrate Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, unless, to the extent permitted by Section 4.02(b), the Company Board approves or recommends a Superior Company Proposal, each of the parties agrees to hereto shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders Consents and authorizations waivers from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain a Consent or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals consents or waivers from third partiesparties under Contracts, (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, including seeking to have any stay, order or injunction 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 and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board 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 any Transaction or this Agreement and (y) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreementthe Transactions. Notwithstanding the foregoing, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent its Representatives shall keep not be prohibited under this Section 5.02 from taking any action permitted by Section 4.02(b) or (d). Acquirer will use its reasonable efforts to cooperate with the other apprised of Company, at the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (orCompany’s reasonable request, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any performance of the other transactions contemplated by this AgreementCompany’s obligations in clauses (i), (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel onlyabove." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Home Products International Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in ARTICLE IV to be satisfied, ; (ii) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from any federal, state, local or foreign governmental authority (collectively, “Governmental Entities Entities” and the each a “Governmental Entity”); (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) NovaRay upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) NovaRay shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of NovaRay 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all reasonable commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (vii) executing or delivering any additional instruments reasonably 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, subject to the other terms and conditions hereof, Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable efforts and take all acts 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent or Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, in each case, where the conditions set forth in Section 6.3(a) or (iiiSection 6.3(b) any change would not be satisfied as a result thereof; provided, however, that no such notification shall affect -------- ------- the representations, warranties, covenants or event having, or that is reasonably likely to have, a Material Adverse Effect on agreements of the notifying party or on the truth of their respective representations and warranties parties or the ability conditions to the obligations of the conditions parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be satisfiedcomplied with or satisfied by it under this Agreement, in each case, where the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as a result thereof; PROVIDED provided, however, that no such -------- ------- notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Infospace Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Exchange and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VIII to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Approvals; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of declarations and filings with Governmental Entities, if any); (iv) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any parties required as a result of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and ; (v) furnishing defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel consummation of the recipient transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and will not be disclosed by such outside counsel (vi) executing or delivering any additional instruments reasonably necessary to employeesconsummate the transactions contemplated by, officersand to fully carry out the purposes of, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselthis Agreement.
(b) The Company ONTN shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Global upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of ONTN 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 8.2 would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification in and of itself shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Global shall give prompt notice to ONTN upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Global 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, in each case, where the conditions set forth in Section 8.1 would not be satisfied as a result thereof; provided, however, that no such notification in and of itself shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VII to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all commercially reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining defending of all any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, 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 or delivery of any additional instruments reasonably necessary consentsto consummate the transactions contemplated by, approvals or waivers from third partiesand to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its all commercially reasonable 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 this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent or Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that -------- ------- no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub 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 the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking making of all commercially reasonable acts necessary to cause the conditions to the Offer registrations and the Merger to be satisfiedfilings (including filings with Governmental Entities and Regulatory Agencies, if any), (ii) the obtaining of all necessary actions or nonactionsactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from Governmental Entities, Regulatory Agencies and other third parties, (iii) the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or Regulatory Agency, (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, (v) the defending of any lawsuits or other legal proceedings, brought by third parties (other than Governmental Entities) challenging this Agreement or the consummation of the transactions contemplated hereby or thereby, including using commercially reasonable efforts to lift, rescind or mitigate the effect of any injunction or restraining order or other order adversely affecting the ability of any party hereto to consummate the transactions contemplated hereby, (vi) the taking of all reasonable actions to fulfill the conditions to the obligations of CTI or Novuspharma set forth in Article VI of this Agreement, and (vii) the using of all reasonable efforts to prevent, with respect to a threatened or pending temporary, preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order, the entry, enactment or promulgation thereof, as the case may be; provided, however, that neither CTI nor Novuspharma shall be obligated to take any action pursuant to the foregoing if the taking of such action or the obtaining of any waiver, consent, approval or exemption is reasonably likely to be materially burdensome to Novuspharma or CTI and its subsidiaries (taken as a whole) or to impact in a materially adverse manner the economic or business benefits of the transactions contemplated by this Agreement so as to render inadvisable the consummation of the Merger. In connection with and without limiting the foregoing, the Company CTI and the Company Board shall, if any Novuspharma and members of their respective Boards of Directors shall (1) grant such approvals and take all such other actions as may be necessary so that no United States federal or state or Italian takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby by this Agreement, and (2) if any United States federal or therebystate or Italian takeover statute or similar statute or regulation becomes applicable to the Merger, this Agreement or any other transaction contemplated by this Agreement, use its commercially reasonable 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 hereby and thereby and otherwise to eliminate or minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice Notwithstanding anything in this Agreement to the Companycontrary, of (i) any representation or warranty made by it nothing contained in this Agreement that is qualified shall be deemed to require any party hereto to take or agree to take any Action of Divestiture (as defined below). For purposes of this Agreement, an “Action of Divestiture” shall mean making proposals, executing or carrying out agreements or submitting to materiality becoming untrue Judgments providing for the license, sale or inaccurate in any respect other disposition or any such representation holding separate (through the establishment of a trust or warranty that is not so qualified becoming untrue or inaccurate in otherwise) of any material respect, (ii) assets or categories of material assets or the failure by it holding separate of Novuspharma Ordinary Shares or imposing or seeking to comply with or satisfy impose any limitation on the ability of any party hereof to conduct its respective business in any material respect any covenantor own such assets or to acquire, condition hold or agreement to be complied with or satisfied by it under this Agreement, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth exercise full rights of their respective representations and warranties or the ability ownership of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this AgreementNovuspharma’s business.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Ariston upon becoming aware that any representation or warranty made by it or Xxxxxx Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Xxxxxx Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Ariston shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Ariston 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all their respective commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this AgreementMerger, including using all commercially reasonable efforts to accomplish the following: including, without limitation, (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings under reasonable steps as may be necessary to obtain any necessary approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity (provided, however, that neither the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Parent nor the Company shall be obligated to make or consent to any divestiture or operational limitation or activity in connection therewith, or any waiver or modification of 1976any right, or any payment of money or grant of any other commercial concession as amendeda condition to obtaining any such waivers, consents or approvals or avoiding such actions or proceedings), (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting , (iii) the foregoingdefending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other transactions contemplated hereby Governmental Entity vacated or thereby, use its commercially reasonable efforts reversed and (iv) the execution and delivery of any additional instruments necessary to ensure that the Offer, consummate the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on and to otherwise fully carry out the terms purposes of this Agreement.
(b) In the event any litigation is commenced against the Company by any Person relating to the transactions contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, Parent shall have the Offerright, the Merger at its own expense, to participate therein, and the other transactions contemplated hereby or thereby. Company shall not settle any such litigation without the consent of Parent.
(c) The Company and Parent shall each use their respective commercially reasonable efforts to keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversby this Agreement, consents, approvals, orders and authorizations, including, without limitation: (i) including promptly notifying the other of, and if in writing, furnishing the other with copies of (ornotice or other communications received by Parent or the Company, in as the case of material oral communicationsmay be, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement. Further, (ii) permitting the other party parties shall use their respective commercially reasonable efforts to review coordinate and discuss in advance, jointly schedule and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults interface with the various Governmental Entities and other party applicable regulatory bodies involved or otherwise interested in advance and to the extent permitted transactions contemplated by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(bd) The Company shall give prompt notice to Parent, and Parent or Sub shall give prompt notice to the Company, of to extent the such party has Knowledge, of, (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) Agreement within the time contemplated hereby. The Company shall promptly advise Parent in writing of the occurrence of any change or event having, or that is reasonably likely after the date of this Agreement Known by the Company to have, have a Company Material Adverse Effect on Effect. Parent shall promptly advise the notifying party or on the truth of their respective representations and warranties or the ability Company in writing of the conditions contained occurrence of any event after the date of this Agreement Known by Parent to have a Parent Material Adverse Effect. For purposes of clarity, no notice or advice given pursuant to this Section shall be deemed to modify, amend or supplement any of the representations or warranties in this Agreement to be satisfied; PROVIDED that no such notification shall or remedy any misrepresentation or breach of warranty or limit or otherwise affect the representations, warranties, covenants or agreements any of the parties rights or the conditions remedies available to the obligations of the parties under this Agreementparty receiving such notice.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (vii) executing or delivering any additional instruments reasonably 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, subject to the other terms and conditions hereof, Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its commercially reasonable efforts and take all acts 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent or Company or any subsidiary or affiliate thereof to agree to any divestiture by itself or any of the other transactions contemplated by this Agreementits affiliates of shares of capital stock or of any business, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (assets or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officersproperty, or directors the imposition of any material limitation on the recipient unless express permission is obtained in advance from the source ability of the materials (the Company any of them to conduct their business or Parentto own or exercise control of such assets, as the case may be) or its legal counselproperties and stock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.03(a) or Section 6.03(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate, or of any failure of Parent or Merger Sub 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, in each case, where the conditions set forth in Section 6.02(a) or Section 6.02(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Telcom Semiconductor Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to shall use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Acquisition and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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, 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 and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting Nothing in this Agreement shall be deemed to require any party to waive any substantial rights or agree to any substantial limitation on its operations or to dispose of any significant asset or collection of assets. Notwithstanding the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may Representatives shall not 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other prohibited under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance 6.03(a) from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) taking any representation or warranty made by it contained in this 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, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.action permitted by
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, ACT and ICH shall: (i) to the conditions set forth extent required, promptly make their respective filings and thereafter make any other required submissions under the HSR Act with respect to the Merger; (ii) use commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the transactions contemplated by such agreements and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (iii) use commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Merger, such consents to be in reasonably satisfactory form to ACT and ICH; and (iv) use all commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. If, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in at any event, within five business days time after the date hereofEffective Time, and (iii) any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger proper officers and directors or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parenttrust managers, as the case may be) or its legal counsel, of ACT and ICH shall use commercially reasonable efforts to take all such necessary action.
(b) The Company ACT shall give prompt notice to ParentICH, and Parent ICH shall give prompt notice to the CompanyACT, of if (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are reasonable actions, and do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this AgreementTransactions, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VII to be satisfiedsatisfied as promptly as practicable, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including filings with Governmental Entities, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. , (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Company Stockholder Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (v) the execution and delivery of any additional instruments necessary to consummate the Transactions; provided, however, that Parent will not be required to agree to, or proffer to, (A) divest or hold separate, or enter into any licensing or similar arrangement with respect to, any assets (whether tangible or intangible) or any of Parent's, the Company's or any of their respective affiliates' businesses or (B) cease to conduct business or operations in any jurisdiction in which Parent or its subsidiaries or the Company conducts business or operations as of the date of this Agreement.
(b) In connection with and without limiting the foregoing, the Company and the Company Board shall, if any (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the OfferCompany Stockholder Agreement, the Merger or any of the other transactions contemplated hereby Transactions and (ii) if any state takeover statute or therebysimilar statute or regulation becomes applicable to this Agreement, use its commercially reasonable efforts the Company Stockholder Agreement, the Merger or any other Transaction, 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 the Company Stockholder Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransactions.
(bc) The Company shall give prompt written notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate such that the condition set forth in any respect or any such representation or warranty that is Section 7.02(a) would not so qualified becoming untrue or inaccurate in any material respect, (ii) the 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, or (iii) any change or event having, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED provided that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(d) Parent shall give prompt written notice to the Company of any representation or warranty made by it or Sub contained in this Agreement becoming untrue or inaccurate such that the condition set forth in Section 7.03(a) would not be satisfied; provided that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(e) Without limiting the generality of the foregoing, the Company shall give Parent the opportunity to participate in the defense of any litigation against the Company or its directors relating to the Merger or the other Transactions, it being understood and agreed that this Section 6.03(c) shall not give Parent the right to direct such defense; provided, however, that the Company shall not settle, or enter into any settlement agreement with respect to, such litigation without Parent's prior written consent.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, each of the parties agrees shall: (i) use commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) use all commercially reasonable efforts (other than the payment of money which is not contractually required to be paid) to obtain in writing any consents required from third parties to effectuate the Mergers, such consents to be in form reasonably satisfactory to each of the parties; and (iii) use commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. If at any time after the Effective Time any further action is necessary or desirable to carry out the purpose of this Agreement, including using each party shall take all such necessary action.
(b) Prentiss and Prentiss Partnership shall use all commercially reasonable efforts to accomplish obtain from PricewaterhouseCoopers LLP, access to all work papers relating to audits of Prentiss and Prentiss Partnership performed by PricewaterhouseCoopers LLP, and the following: (i) the taking continued cooperation of all commercially reasonable acts necessary to cause the conditions PricewaterhouseCoopers LLP, with regard to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to consolidated financial statements for the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselSurviving Corporation.
(bc) The Company Prentiss and Prentiss Partnership shall give prompt notice to ParentMack- Cali and Mack-Cali Partnership, and Parent Mack-Cali and Mack-Cali Partnership shall give prompt notice to the CompanyPrentiss and Prentiss Partnership, of (i) if any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming becomes untrue or inaccurate in any material respect, respect or (ii) of the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Prentiss Properties Trust/Md)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) FlexSCAN upon becoming aware that any representation or warranty made by it or FCA Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it FCA Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.. (c) FlexSCAN shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of FlexSCAN 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. 5.3
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to Company shall use all commercially reasonable efforts to take, or cause to be taken, all actions that are reasonable actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate bring about the confirmation of the Plan. Upon the terms and make effective subject to the Offer, the Merger and the other transactions contemplated by conditions set forth in this Agreement, including using the Purchaser shall use all commercially reasonable efforts to accomplish meet with customers at the following: (i) request of the taking of all commercially reasonable acts necessary Company. Upon the terms and subject to cause the conditions to the Offer and the Merger to be satisfiedset forth in this Agreement, (ii) the obtaining each of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, Purchaser shall use its all commercially reasonable efforts to ensure that take, or cause to be taken, all reasonable actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to bring about the Offer, the Merger and satisfaction of all other conditions to the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise party's obligations to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, close (including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communicationsthe Purchaser, advise use of commercially reasonable efforts to enforce the other orally of) Commitment Letter, which the Purchaser shall not amend or waive without the Company's consent); provided, however, that nothing in this Agreement shall obligate either the Company or the Purchaser, or any communications from of their respective Affiliates, to waive or with modify any Governmental Entity with respect to of the Offer, the Merger terms and conditions of this Agreement or any of the other transactions documents contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselhereby.
(bi) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, Purchaser of (ix) any representation or warranty made by it contained set forth in this Agreement that is qualified as to materiality becoming untrue Exhibit B being or inaccurate in any respect or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respectrespect as of any date on or after the date hereof (as if then made, except to the extent such representation or warranty is expressly made only as of a specific date, in which case as of such date), (iiy) the 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, Agreement or (iiiz) any change change, effect, event, occurrence, state of facts or event having, development of which it becomes aware that has had or that is would reasonably likely be expected to have, individually or in the aggregate, a Company Material Adverse Effect Effect; and (ii) the Purchaser shall give prompt notice to the Company of (x) any representation or warranty set forth in Exhibit C being or becoming untrue or inaccurate in any material respect as of any date on or after the notifying party date hereof (as if then made, except to the extent such representation or on warranty is expressly made only as of a specific date, in which case as of such date), (y) the truth of their respective representations and warranties failure by it to comply with or the ability of the conditions contained satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement or (z) any change, effect, event, occurrence, state of facts or development of which it becomes aware that has had or would reasonably be expected to be satisfiedhave, individually or in the aggregate, a Purchaser Material Adverse Effect; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Conditional Subscription Agreement (Usinternetworking Inc)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, except to the extent otherwise required by United States regulatory considerations and otherwise provided in this Section 5.4, each of the parties PBiz and Captiva agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger Merger, and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities governmental entities and the making of all necessary registrationsregistrations and filings (including filings with governmental entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid a Proceeding by, any eventgovernmental entity, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Proceeding challenging this Agreement or the consummation of the transactions contemplated hereby, 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 this Agreement. In connection with and without limiting the foregoing, the Company Captiva and the Company Board shall, if any its board of managers shall (i) take all action reasonably necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger and (ii) if any state takeover statute or any of similar statute or regulation becomes applicable to the other transactions contemplated hereby or therebyMerger, use its commercially reasonable efforts take all action reasonably 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company Captiva shall give prompt notice to ParentPBiz, and Parent PBiz shall give prompt notice to the CompanyCaptiva, of (i) any representation or warranty made by it contained in this 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) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, representations or warranties or covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementhereunder.
(c) PBiz shall promptly prepare and submit to the Nasdaq SmallCap Market a listing application covering the shares of PBiz Common Stock issuable in the Merger as of the Closing Date, and shall use its commercially reasonable efforts to obtain, prior to the Effective Time, approval for the listing of such shares of PBiz Common Stock, subject to official notice of issuance, and Captiva shall cooperate with PBI with respect to such listing.
(d) Not later than January 31, 2007, PBiz shall prepare and submit to the Nasdaq SmallCap Market a listing application covering the shares of PBiz Common Stock issuable as the Earnout Payment, and shall use its commercially reasonable efforts to obtain, as soon as practical thereafter, approval for the listing of such shares of PBiz Common Stock, subject to official notice of issuance.
(e) Each of PBiz and Captiva agrees to use commercially reasonable efforts to cause Captiva and its employees to be covered by the Pbiz Insurance Policies at the Effective Time.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject conditions herein provided, the Company and Camden shall: (a) to the conditions set forth extent required, promptly make their respective filings and thereafter make any other required submissions under the HSR Act with respect to the Merger; (b) use all commercially reasonable efforts to cooperate with one another in (i) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, each and the consummation of the transactions contemplated by such agreements and (ii) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (c) use all commercially reasonable efforts to obtain in writing any consents required from third parties agrees to effectuate the Merger, such consents to be in reasonably satisfactory form to the Company and Camden; and (d) use all commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement. If, including using at any time after the Effective Time, any further action is necessary or desirable to carry out the purpose of this Agreement, the proper officers and directors of the Company and Camden shall use all commercially reasonable efforts to accomplish the following: (i) the taking of take all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselaction.
(b) The Company shall give prompt notice to ParentCamden, and Parent Camden or Camden Sub shall give prompt notice to the Company, of if (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this AgreementAgreement and otherwise provided in this Section 6.3, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, filings (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"with Governmental Entities) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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 and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement. In connection with and without limiting the foregoing, each of the Company and the Company Itron and its respective Board shall, if any of Directors shall (i) take all action reasonably necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger and (ii) if any state takeover statute or any of similar statute or regulation becomes applicable to the other transactions contemplated hereby or therebyMerger, use its commercially reasonable efforts take all action reasonably 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to ParentItron, and Parent Itron shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, representations or warranties or covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementhereunder.
Appears in 1 contract
Samples: Merger Agreement (Itron Inc /Wa/)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to hereto shall use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this AgreementAgreement and the other Transaction Agreements, including using all commercially reasonable efforts to accomplish the following: (i) the taking fulfillment of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfiedset forth in Article 8 hereof, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties, and (iv) the execution and delivery, prior to or following the Closing, of any additional instruments necessary to consummate the transactions contemplated by this Agreement and the other Transaction Agreements and to fully carry out the purposes of this Agreement and the Transaction Agreements. In connection with and without limiting the foregoing, each of BioValve, BTI, the Company and the Company Board shall, if any Paramount shall (x) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any other Transaction Agreement, the Offer, the Merger or any of the other transactions contemplated hereby and thereby and (y) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, any Transaction Agreement or any transaction contemplated hereby or thereby, use its commercially reasonable efforts take all action necessary to ensure that the Offer, the Merger and the other such 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTransaction Agreements.
(b) The BioValve, BTI and the Company shall give prompt notice to ParentParamount, and Parent Paramount shall give prompt notice to BioValve, BTI and the Company, of (i) any representation or warranty made by it contained in this Agreement or any Transaction 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, respect or (ii) the 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 any Transaction Agreement; provided, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this AgreementAgreement or the Transaction Agreements.
Appears in 1 contract
Samples: Contribution Agreement (Paramount Acquisition Corp)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Heritage and Xxxxxxx agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions that are and to do, or cause to be done, and to assist and cooperate with the other 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 effective, in the Offermost expeditious manner practicable, the Merger Merger, the Xxxxxxx OP Offer (as hereinafter defined) and the other transactions contemplated by this Agreementthe Transaction Documents, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, including filings and the making taking of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976reasonable steps as may be necessary to obtain an approval, as amendedwaiver or exemption from any Governmental Entity, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iiiii) the obtaining of all necessary consents, approvals approvals, waivers or waivers exemption from non-governmental third parties; and (iii) 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 addition, each of Heritage and without limiting Xxxxxxx agrees to use their best efforts to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging the foregoingMerger, this Agreement or the transactions contemplated by the Transaction Documents, including seeking to have any stay, temporary restraining order, injunction, or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated by the Transaction Documents entered by any court or other Governmental Entity vacated or reversed. For purposes of this Section 5.3(a), the Company and obligations of the Company Board shallparties hereto to use their "commercially reasonable efforts" to obtain consents, if approvals, waivers or exemptions shall not include any state takeover statute obligation by a party without the consent of the other party to agree to an adverse modification of the terms of any agreement, arrangement, instrument or similar statute understanding, to prepay existing or regulation incur additional obligations to any other party, to incur liabilities or to make payments for all such matters in an aggregate amount that exceeds $5,000,000. If, at any time after the Effective Time, any further action is necessary or becomes applicable desirable to carry out the purpose of this Agreement, the Offer, proper officers and directors of Xxxxxxx and Heritage shall take all such necessary action. From the Merger or any date of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may through the Effective Time, Xxxxxxx shall timely file, or cause to 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 this Agreementfiled, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and SEC all Xxxxxxx SEC Documents required to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselso filed.
(b) The Company Xxxxxxx shall give prompt notice to ParentHeritage, and Parent Heritage shall give prompt notice to the CompanyXxxxxxx, of if (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming becomes untrue or inaccurate in any material respect, respect or (ii) the failure by 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 (A) such notification shall only be required of Xxxxxxx to the extent that the matter in question would prevent satisfaction of the condition specified in Section 6.2(a) or (iiib), (B) any change or event having, or such notification shall only be required of Heritage to the extent that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability matter in question would prevent satisfaction of the conditions contained condition specified in this Agreement to be satisfied; PROVIDED that Section 6.3(a) or (b), and (C) no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause causing the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, ; (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Entities; (iii) making of all necessary registrations, declarations and filingsfilings (including registrations, including declarations and filings with Governmental Entities, if any); (iv) avoiding any suit, claim, action, investigation or proceeding by any Governmental Entity challenging the making of Merger or any other transaction contemplated by this Agreement; (v) obtaining all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in any event, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated parties required as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion a result of the transactions contemplated hereby in this Agreement; (vi) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and work cooperatively in connection with obtaining (vii) executing or delivering any such waiversadditional instruments reasonably necessary to consummate the transactions contemplated by, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying to fully carry out the other purposes of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) Ariston upon becoming aware that any representation or warranty made by it or Ariston Merger Sub contained in this Agreement that is qualified as to materiality becoming has become untrue or inaccurate in inaccurate, or of any respect failure of Parent or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it Ariston Merger Sub 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, or (iii) any change or event havingin each case, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of where the conditions contained set forth in this Agreement to Section 6.2(a) or Section 6.2(b) would not be satisfiedsatisfied as a result thereof; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) Ariston shall give prompt notice to Parent upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate, or of any failure of Ariston 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, in each case, where the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result thereof; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions conditions, including, without limitation, Section 5.4, set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required as a result of the transactions contemplated by this Agreement, (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution or 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 each of Parent and Company and the Company Board their respective Boards of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Agreement or any of the other transactions contemplated hereby or therebyby this Agreement, use its all commercially reasonable 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 Merger, this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect hereby. Notwithstanding anything herein to the Offercontrary, the Merger nothing in this Agreement shall be deemed to require Parent, Company or any subsidiary or Affiliate of Parent or Company to agree to any divestiture by itself or any of its Affiliates of shares of capital stock or the other transactions contemplated by this Agreementimposition of any material limitation on the ability of any of them to conduct their business or to own or exercise control of such assets, (ii) permitting the other party to review properties and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselstock.
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) upon becoming aware that any representation or warranty made by it contained in this 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 has become untrue or inaccurate in any material respect, (ii) the or of any failure by it of Company 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. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.6(b) requires any change in the Company Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Company Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Company shall promptly deliver to Parent an update to the Company Schedule specifying such change. No such update shall be deemed to supplement or amend the Company Schedule for the purpose of determining (iiii) the accuracy of any change or event having, or that is reasonably likely to have, a Material Adverse Effect on of the notifying party or on the truth of their respective representations and warranties or the ability made by Company in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
(c) Parent shall give prompt notice to Company upon becoming aware that any representation or warranty made by it or Merger Sub contained in this Agreement has become untrue or inaccurate in any material respect, or of any failure of Parent or Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants complied with or agreements of the parties or the conditions to the obligations of the parties satisfied by it under this Agreement. If any event, condition, fact or circumstance that is required to be disclosed pursuant to this Section 5.6(c) requires any change in the Parent Schedule, or if any such event, condition, fact or circumstance would require such a change assuming the Parent Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstance, then Parent shall promptly deliver to Company an update to the Parent Schedule specifying such change. No such update shall be deemed to supplement or amend the Parent Schedule for the purpose of determining (i) the accuracy of any of the representations and warranties made by Parent and Merger Sub in this Agreement and (ii) whether any of the conditions set forth in Section 6 have been satisfied.
Appears in 1 contract
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, except to the extent otherwise required by United States regulatory considerations and otherwise provided in this Section 6.3, each of the parties ----------- agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings, filings (including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"with Governmental Entities) and the relevant foreign antitrust laws taking of all reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) 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 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 this Agreement. In connection with and without limiting the foregoing, each of the Company and the Company Itron and its respective Board shall, if any of Directors shall (i) take all action reasonably necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger and (ii) if any state takeover statute or any of similar statute or regulation becomes applicable to the other transactions contemplated hereby or therebyMerger, use its commercially reasonable efforts take all action reasonably 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel.
(b) The Company shall give prompt notice to ParentItron, and Parent Itron shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall -------- ------- affect the representations, warranties, representations or warranties or covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementhereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Itron Inc /Wa/)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Party agrees to use all its commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Restructuring Transaction, the TSAT Merger and (if the other transactions contemplated by this AgreementTSAT Merger shall not first have been consummated) the Tempo Sale, including using all its commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of obtain all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrationsregistrations and filings (including filings with Governmental Entities, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all commercially reasonable steps as promptly as reasonably practicablemay be necessary to obtain an approval or waiver from, and in or to avoid an action or proceeding by, any eventGovernmental Entity, within five business days after the date hereof, and (iiiii) the obtaining of obtain all necessary consents, approvals or waivers from third parties, (iii) respond to requests for information from the Department of Justice, the Federal Trade Commission, the FCC and any other Governmental Entity relating to the Restructuring Transaction, the TSAT Merger or the Tempo Sale, (iv) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or all or any part of the Restructuring Transaction, the TSAT Merger or the Tempo Sale, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) execute and deliver 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 TSAT and the Company its Board shall, if any of Directors shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the Roll-up Plan, including, for avoidance of doubt, the Restructuring Transaction, the TSAT Merger, the Tempo Sale, the Voting Agreements, this Agreement, the OfferTSAT Merger Agreement, the TSAT Tempo Agreement or the TSAT Stockholders Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to the Restructuring Transaction, the TSAT Merger, the Tempo Sale, the Voting Agreements, this Agreement, the TSAT Merger Agreement, the TSAT Tempo Agreement or any of the other transactions contemplated hereby or therebyTSAT Stockholders Agreement, use its commercially reasonable efforts take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement Restructuring Transaction 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 this Agreementthe Restructuring Transaction, the Offer, the TSAT Merger and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselTempo Sale.
(b) The Notwithstanding anything to the contrary in this Agreement, no Party shall be required to agree to any prohibition, limitation or other requirements that would (i) prohibit or limit the ownership or operation by such Party or any of its subsidiaries or affiliates of any portion of the business or assets of such Party or any of its subsidiaries or affiliates, or compel such Party or any of its subsidiaries or affiliates to dispose of or hold separate any portion of the business or assets of such Party or any of its subsidiaries or affiliates, (ii) impose limitations on the ability of such Party to acquire or hold, or exercise full rights of ownership of, any shares of capital stock of the Company, including the right to vote the capital stock of the Company acquired by it on all matters properly presented to the stockholders of the Company, (iii) prohibit such Party or any of its subsidiaries or affiliates from effectively controlling in any material respect the business or operations of such Party or any of its subsidiaries or affiliates or (iv) change in any respect the governance of the Company from that set forth in the Charter and By-laws, or change such Party's rights under the Stockholders Agreement or the Xxxxxxxx Voting Agreement, or impose limitations on the ability of such Party to exercise any such rights.
(c) Each Party shall give prompt notice to Parent, and Parent shall give prompt written notice to the Company, other Parties of (i) any representation or warranty made by it contained in this 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, respect or (ii) the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that -------- ------- no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Merger and Contribution Agreement (Cox Communications Inc /De/)
Commercially Reasonable Efforts; Notification. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions that are actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective effective, in the Offermost expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filingsfilings (including registrations, including the making of all declarations and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976with Governmental Entities, as amended, (the "HSR ACT"if any) and the relevant foreign antitrust laws taking of all commercially reasonable steps as promptly as reasonably practicablemay be necessary to avoid any suit, and in claim, action, investigation or proceeding by any eventGovernmental Entity, within five business days after the date hereof, and (iii) the obtaining defending of all any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, 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 or delivery of any additional instruments reasonably necessary consentsto consummate the transactions contemplated by, approvals and to fully carry out the purposes of, this Agreement; provided, however, that nothing in this Agreement shall require Parent to agree to divestiture material to Parent or waivers from third partiesCompany by Parent or Company or any of Parent's subsidiaries or affiliates of shares of capital stock or of any business, assets or property of Parent or its subsidiaries or affiliates or Company or its subsidiaries or affiliates or the imposition of any material limitation on the ability of any of them to conduct their businesses or to own or exercise control of such capital stock, assets or properties. In connection with and without limiting the foregoing, the Company and the Company its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement, the Offer, the Merger Company Voting Agreements or any of the other transactions contemplated hereby or and thereby, use its commercially reasonable efforts to ensure that the OfferMerger, this Agreement, the Merger Company Voting Agreements and the other transactions contemplated by this Agreement hereby and thereby 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 Merger, this Agreement, the Offer, the Merger Company Voting Agreements and the other transactions contemplated hereby or thereby. The Company and Parent shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waiversthereby.
(b) Each of Parent, consents, approvals, orders Merger Sub and authorizations, including, without limitationCompany will notify the other promptly upon the receipt of: (i) promptly notifying the other of, and if in writing, furnishing the other with copies any comments from any officials of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity in connection with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, filings made pursuant hereto; and (ii) permitting the other party any request by any officials of any Governmental Entity for amendments or supplements to review and discuss any filings made pursuant to, or information provided to comply in advance, and considering in good faith the views of one another in connection all material respects with, any proposed written (Legal Requirements. Whenever any event occurs that is required to be set forth in an amendment or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information supplement to any Governmental Entity. The Company and Parent mayfiling made pursuant hereto, as each deems advisable and necessaryParent, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, Merger Sub or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or ParentCompany, as the case may be) , will promptly inform the others of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or its legal counselsupplement.
(bc) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect inaccurate, or any such representation or warranty that is not so qualified becoming untrue or inaccurate in any material respect, (ii) the failure by it of Company 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, or (iii) any change or event havingin each case, or such that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained set forth in this Agreement to Section 6.3(a) or 6.3(b) would not be satisfied; PROVIDED provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(d) Parent shall give prompt notice to Company of any representation or warranty made by it or Merger Sub contained in this Agreement becoming untrue or inaccurate, or any failure of Parent or Merger Sub to comply with or satisfy in any respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Juniper Networks Inc)
Commercially Reasonable Efforts; Notification. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreementherein provided, each of the parties agrees shall: (i) use commercially reasonable efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including, without limitation, any filing under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations; (ii) use all commercially reasonable efforts (other than the payment of money which is not contractually required to be paid) to obtain in writing any consents required from third parties to effectuate the Mergers, such consents to be in form reasonably satisfactory to each of the parties; and (iii) use commercially reasonable efforts to take, or cause to be taken, all actions that are other action and do, or cause to be done, all other things necessary, proper or advisable appropriate to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including using all commercially reasonable efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including the making of all filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (the "HSR ACT") and the relevant foreign antitrust laws as promptly as reasonably practicable, and in . If at any event, within five business days time after the date hereof, and (iii) Effective Time any further action is necessary or desirable to carry out the obtaining purpose of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and the Company Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby or thereby, use its commercially reasonable 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 this Agreement, the Offer, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent each party shall keep the other apprised of the status of matters relating to the completion of the transactions contemplated hereby and work cooperatively in connection with obtaining any such waivers, consents, approvals, orders and authorizations, including, without limitation: (i) promptly notifying the other of, and if in writing, furnishing the other with copies of (or, in the case of material oral communications, advise the other orally of) any communications from or with any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) permitting the other party to review and discuss in advance, and considering in good faith the views of one another in connection with, any proposed written (or material proposed oral) communication with any Governmental Entity, (iii) not participating in any meeting with any Governmental Entity unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate there at, (iv) furnishing the other party with copies of take all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any Governmental Entity with respect to this Agreement, the Offer and the Merger, and (v) furnishing the other party with such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counselaction.
(b) The Company Spieker and Spieker Partnership shall use commercially reasonable efforts to obtain from Arthur Andersen LLP access to all work papers relating to audits of Spieker and Spieker Partnership performed by Arthur Andersen LLP, and the continued cooperation of Arthur Andersen LLP with regard to the preparation of consolidated financial statements for the Surviving Trust.
(c) Spieker and Spieker Partnership shall give prompt notice to ParentEquity Office and EOP Partnership, and Parent Equity Office and EOP Partnership shall give prompt notice to the CompanySpieker and Spieker Partnership, of (i) if any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becoming becomes untrue or inaccurate in any material respect, respect or (ii) of the 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, or (iii) any change or event havinghowever, or that is reasonably likely to have, a Material Adverse Effect on the notifying party or on the truth of their respective representations and warranties or the ability of the conditions contained in this Agreement to be satisfied; PROVIDED that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
Appears in 1 contract
