Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion. (b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party. (c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed). (d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 6 contracts
Samples: Business Combination Agreement (Digital Transformation Opportunities Corp.), Business Combination Agreement (Digital Transformation Opportunities Corp.), Business Combination Agreement (Digital Transformation Opportunities Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original date of this Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 3 contracts
Samples: Business Combination Agreement (Digital Transformation Opportunities Corp.), Business Combination Agreement (Digital Transformation Opportunities Corp.), Business Combination Agreement (Digital Transformation Opportunities Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and 10, (iiy) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated hereby, and (z) obtaining approval for listing the Surviving Pubco Common Stock issued pursuant to this Agreement on Nasdaq). All the costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including HSR Act filing fees and any filing fees in connection with any other Antitrust Law, and any fees associated with obtaining approval for listing the Surviving Pubco Common Stock issued pursuant to this Agreement on Nasdaq, shall be paid 50% by the Transaction AgreementsCompany and 50% by Tuatara. Each Party shall make or cause to be made (Aand not withdraw) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as practicable after the date hereof (and in any event event, with respect to filings required under the HSR Act, within 10 ten (10) Business Days) following ). The Parties shall request early termination of the Original Agreement Date waiting period in any filings submitted under the HSR Act and (B) respond shall use commercially reasonable efforts to supply as promptly as reasonably practicable to any requests by any the appropriate Governmental Authority for Authorities additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Act or any other Antitrust Law.
(b) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under applicable Law and (B) obtaining approval for listing the Surviving Pubco Common Stock issued pursuant to this Agreement on Nasdaq.
(c) Each Party shall, in connection with the Agreement and the transactions contemplated hereby, to the extent permitted by applicable Law: (i) promptly inform notify the Company of any communication between Acquiror, on the one handother Parties of, and any Governmental Authorityif in writing, on furnish the other handParties with copies of (or, and in the Company shall promptly inform Acquiror case of any communication between either Companyoral communications, on the one hand, and any Governmental Authority, on advise the other hand, in either case, regarding parties hereto of) any of the Transactions material substantive communications from or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactionsor Nasdaq, except with the prior written consent of the other Parties. The Company will pay all filing fees (ii) cooperate in connection with the HSR Act when due any proposed substantive written or oral communication with any Governmental Authority and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of permit the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity Parties to review and discuss in advance, and consider in good faith the views view of the other Parties in connection with, any proposed substantive written or oral communication to with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees Nasdaq, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions or Nasdaq unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental AuthorityAuthority or Nasdaq, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant Parties’ outside legal counsel with copies of all filings and communications between it and any such Governmental Authority or agreement shall govern and control solely to the extent of such conflict Nasdaq and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority or Nasdaq; provided, that materials required to be provided pursuant to this Section may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iiiB) to the extent required remove references to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceprivileged information.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Merger Agreement (Tuatara Capital Acquisition Corp)
Efforts to Consummate. (a) Subject to On the terms and subject to the conditions hereinherein provided, each of the Parties Company and Parent shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.046). Without limiting Each Party shall make an appropriate filing, if necessary, pursuant to all applicable Antitrust Laws, including the generality HSR Act (which, in the case of the foregoingHSR Act, each filing shall not request early termination of the Parties shall use reasonable best efforts waiting period prescribed by the HSR Act) with respect to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions this Agreement promptly (and in any event event, within 10 Business Daysthirty (30) following days after the Original Agreement Date date of this Agreement) and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Actany Antitrust Laws. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any All of the Transactions or filing fees under any Transaction AgreementAntitrust Laws will be paid in full by Parent. Without limiting the foregoing, (xi) Parent and the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, Company and (y) each Party and its their respective Affiliates shall not extend take any action with respect to such filing that has or may have the effect of extending any waiting period, review period or comparable period under the HSR Act any Antitrust Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay Company, and (ii) Parent agrees to take (and Parent’s “reasonable best efforts” shall expressly include the taking of) all filing fees actions that are necessary or advisable or as may be required by any Governmental Entity to expeditiously (and in connection with no event later than the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to Termination Date) consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to including, (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose ofof (x) any entities, assets or facilities of any entities Group Company after the Closing or assets of the Company or (y) any of their respective Subsidiaries or any entity entity, facility or asset of such Party Parent or any of its Affiliates before or any other Person after the Closing, (B) terminating, amending or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligations. No Party shall agree to any terminating existing licenses or other agreements (other than terminations that would result in a breach of the measures in the foregoing sentence a license or such other agreement with respect to any a third party) and entering into such new licenses or other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults withagreements, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheldcase, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)on Closing.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 2 contracts
Samples: Merger Agreement (Priority Technology Holdings, Inc.), Merger Agreement (Priority Technology Holdings, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinof this Agreement, each of the Parties parties hereto shall cooperate with the other party and use their (and shall cause its respective Subsidiaries to use) its respective reasonable best efforts efforts, to the fullest extent permitted by applicable Law, to promptly (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, all things reasonably things, necessary, proper or advisable to cause the conditions to the Offer and the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Antitrust Laws), and (ii) obtain all approvals, consents, registrations, permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions. For purposes hereof, “Antitrust Laws” means the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and make effective as promptly as reasonably practicable all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the Transactions purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
(including (ib) the satisfaction of the closing conditions set forth In furtherance and not in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality limitation of the foregoing, (i) each party hereto agrees to make an appropriate filing of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions a Notification and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable following the date of this Agreement (but in no event later than ten (10) Business Days hereafter) and to supply as promptly as practicable any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform Act and to take, or cause to be taken, all other actions consistent with this Section 5.3 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable; and (ii) the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company Parent shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, each use its reasonable best efforts to (x) the Parties agree take all action necessary to request early termination of all waiting periods ensure that no state takeover statute or similar Law is or becomes applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend if any waiting period, review period state takeover statute or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not similar Law becomes applicable to consummate the Transactions, except with take all action necessary to ensure that the prior written consent Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the Transactions.
(c) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other Parties. The Company will pay all in connection with any filing fees or submission with a Governmental Authority in connection with the HSR Act when due Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private party, and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such fees party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding the Transactions. Subject to applicable Laws relating to the exchange of information, each of the parties hereto shall have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other parties and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection with the Transactions.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.3, each of the parties hereto shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by a Governmental Authority or other Person with respect to the Transactions. Without limiting any other provision hereof, Parent shall take such actions as shall be deemed 50% Company Transaction Expenses necessary to (i) avoid the entry of, or to have vacated or terminated, any decree, order or judgment that would restrain, prevent or delay the consummation of the Transactions on or before the Outside Date, including by defending through litigation on the merits any claim asserted in any court by any Person, and 50% Acquiror Transaction Expenses. Notwithstanding (ii) avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority with respect to the Transactions so as to enable the consummation of the Transactions to occur as soon as reasonably possible (and in any event no later than the Outside Date) in each case, as may be required in order to obtain any approvals from any Governmental Authority necessary to consummate the Transactions or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any Action or Proceeding, which would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided, however, that, notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 connection with any filing or any other provision of this Agreement obligates any Party submission required or action to be taken by either Parent or the Company to consummate the Transactions, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action (i) sell, license the effectiveness or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets consummation of which is not conditional on the consummation of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person Offer and the Merger or (ii) terminatethat individually or in the aggregate is or would be reasonably expected to result in a material diminution of the benefits of the Transactions to Parent (with materiality, amend for purposes of this provision, being measured in relation to the size of the Company and its Subsidiaries taken as a whole) (any such action, undertaking, condition or assign any existing relationships and contractual rights or obligationsother restriction, a “Materially Burdensome Condition”). No Party The Company shall agree agree, if requested by Parent in writing, to commit to take any of the measures in the foregoing sentence actions with respect to any other Party the assets or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives business of the Company (in their capacity as a representative furtherance of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigationthis Section 5.3; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not action may be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to conditioned upon the consummation of a business combination in accordance with the foregoing sentenceOffer and the Merger and the other Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Galderma Laboratories, Inc.), Merger Agreement (Collagenex Pharmaceuticals Inc)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Seller and Buyer shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 7 and obtaining consents of all Governmental Entities necessary to consummate the transactions contemplated hereby and (ii) using commercially reasonable best efforts to obtain PIPE Investments as provide assistance in connection with any financing activities undertaken by Buyer or its Affiliates related to the transactions contemplated by Section 8.04hereby, including providing Buyer and any of its lenders with customary diligence materials with respect to the Group Companies and comfort letters from Seller’s and the Company’s auditors with respect to the Financial Statements and any financial statements to be delivered at the Closing). Without limiting The filing fees under any Antitrust Laws will be split equally between Buyer and Seller. Each Party shall make an appropriate filing, if necessary, pursuant to all applicable Antitrust Laws, including the generality HSR Act (which, in the case of the foregoingHSR Act, each filing shall specifically request early termination of the Parties shall use reasonable best efforts waiting period prescribed by the HSR Act) with respect to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions this Agreement promptly (and in any event event, within 10 five Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction AgreementAntitrust Laws. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, Buyer and (y) each Party Seller and its their respective Affiliates shall not extend take any action that has or may have the effect of extending any waiting period, review period or comparable period under the HSR Act any Antitrust Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of Buyer and Seller.
(b) In the event any Proceeding by a Governmental Entity or other Parties. The Company will pay all filing fees Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection with therewith, the HSR Act when due Parties agree to cooperate and use all reasonable efforts to defend against such fees shall be deemed 50% Company Transaction Expenses Proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all commercially reasonable efforts to have such injunction or other order lifted, and 50% Acquiror Transaction Expenses. Notwithstanding anything to use commercially reasonable efforts regarding any other impediment to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets consummation of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or transactions contemplated hereby.
(iic) terminate, amend or assign any existing relationships Seller and contractual rights or obligations. No Party Buyer shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give permit counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(cd) During the Interim Periodperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to except as required by this Agreement, Buyer and its Affiliates shall not engage in any Transaction Agreements action or enter into any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror transaction or permit any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, action to be taken or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject transaction to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, howeverbe entered into, that in no event shall Acquiror settle would reasonably be expected to materially impair or compromise any Transaction Litigation without delay Buyer’s ability to consummate the prior written consent of the Company (not to be unreasonably withheld, conditioned transactions contemplated by this Agreement or delayed)perform its obligations hereunder. Without limiting the generality of the foregoing, in no event none of Buyer, the Subsidiaries of Buyer or their respective Affiliates shall the Company acquire (whether by merger, consolidation, stock or its Subsidiaries asset purchase or otherwise), or agree to so acquire, any amounts of assets of or any equity in any other Person or any business or division thereof, unless that acquisition or agreement would not reasonably be expected to (i) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement (including pursuant to any Antitrust Laws) or the expiration or termination of any waiting period under the HSR Act, or (ii) increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or increase the risk of not being able to remove any such order on appeal or otherwise. Notwithstanding anything the contrary herein, the Company’s, Buyer’s and their respective Representatives settle or compromise Affiliates’ consummation of any Transaction Litigation without Acquiror’s transactions with customers and prospective customers announced prior written consent (to the date of this Agreement shall not to be unreasonably withheld, contained or delayed)constitute a violation of this Section 6.3.
(de) If Acquiror Each of the Parties shall use its commercially reasonable efforts to cooperate in all respects with each other in connection with any filing or submission with a Governmental Entity required in connection with the Transactions.
(f) For the purposes of this Section 6.3 and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12Section 8.1, 2023 (the “Acquiror Termination Date”), then (i) Acquiror Buyer’s and Seller’s “commercially reasonable efforts” shall call a special meeting expressly include contesting, defending, appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order, or denial of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to clearance, that would adversely affect the Acquiror Termination Date ability of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required any Party to consummate the Transactions transactions contemplated by this Agreement, and (ii) Buyer’s “commercially reasonable efforts” shall expressly exclude (A) selling, licensing or otherwise disposing of, or holding separate and agreeing to sell, license or otherwise dispose of (i) any entities, assets or facilities of any Group Company after the Closing or (ii) any entity, facility or asset of Buyer or its Affiliates before or after the Closing, (B) terminating, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”third party), (iiC) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisorsrestricting any business operations or prospective business operations, and (ivD) amending, assigning or terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and in entering into such new licenses or other agreements.
(g) Buyer shall promptly reimburse the event the Extension Proposal is duly approved Company for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) incurred by the affirmative vote Group Companies or their respective representatives in connection with their respective obligations pursuant to, and in accordance with, Section 6.3(a)(ii), and shall indemnify and hold harmless the Group Companies and their respective representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them as a result of the holders arrangement of the requisite number of Acquiror Common Stock entitled to vote thereon Buyer’s financing and any information used in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated connection therewith (other than information provided by the Extension Proposal. If, following Group Companies) and all other actions taken by any such approval of the Extension Proposal, Acquiror Group Company and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith its respective representatives pursuant to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceSection 6.3(a)(ii).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Cognizant Technology Solutions Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof and in any event no later than the End Date the transactions contemplated by this Agreement, including (i) preparing as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly transactions contemplated hereby and make an appropriate and complete filing in respect of the Governmental Approval(s) listed on Section 7.03(a) of the Company Disclosure Letter pursuant to applicable Regulatory Law with respect to the transactions contemplated hereby, in each case within ten (and in any event within 10 10) Business Days) Days following the Original Agreement Date and date of this Agreement, (B) respond make all other filings pursuant to other Regulatory Laws that are necessary, proper, or advisable to permit consummation of the transactions contemplated hereby as reasonably promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one handpracticable, and (C) not extend any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions period under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Partiesparties hereto. The Each of Parent and the Company will pay shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its reasonable best efforts to take all filing fees other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and obtain approval under any other Regulatory Law as soon as possible and in any event no later than the End Date.
(b) Each of Parent and the Company shall, in connection with the actions referenced in Section 7.03(a) to obtain all Governmental Approvals under the HSR Act when due or any other Regulatory Laws, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed of any communication received by such fees party from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) to the extent practicable, consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.03(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be deemed 50% given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 7.03(a) and 7.03(b), Parent and the Company Transaction Expenses shall use their respective reasonable best efforts to (x) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including proposing, negotiating, committing to and 50% Acquiror Transaction Expenses. Notwithstanding effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of the Company or the Company Subsidiaries, and (y) otherwise taking or committing to take actions that after the Closing may limit the Company’s and the Company Subsidiaries’ freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines or assets of the Company and/or the Company Subsidiaries; provided, however, any action contemplated by clauses (x) and (y) is conditioned upon the consummation of the transactions contemplated by this Agreement; provided, further, that notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision none of this Agreement obligates any Party Parent or any of its Affiliates (including Merger Sub) shall be required to and, without the prior written consent of Parent, neither the Company nor any Company Subsidiary may, (A) litigate with or otherwise participate in any legal proceeding with any Governmental Entity in connection with obtaining any consent or approval required in connection with this Agreement or to consummate the transactions contemplated by this Agreement or (B) accept or agree to (i) sellany limitation on ownership or operations, license or otherwise to dispose of, of or hold separate and agree to sell, license or otherwise dispose of, any entities portion of the business or assets of Parent, the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity otherwise undertake any action or enter into any agreement pursuant to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any 7.03 if such limitation, disposal, hold separate or other covenant action or agreement in this Agreement that is intended would reasonably be expected to specifically address any subject matterhave a Burdensome Effect. “Burdensome Effect” shall mean a material and adverse effect on Parent, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is their respective Affiliates, taken as a party.
(c) During whole, with the Interim Periodunderstanding that any such effect that, Acquirorindividually or in the aggregate, on would reasonably be expected to reduce the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning combined annual revenues of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelyParent, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle Affiliates by $54,000,000 or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit more shall be funded by deemed a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence“Burdensome Effect.”
Appears in 2 contracts
Samples: Merger Agreement (Carbonite Inc), Merger Agreement (Open Text Corp)
Efforts to Consummate. (a) Subject to the terms Each Purchaser and conditions herein, each of the Parties CPPIB shall use their respective reasonable best efforts to take, or cause to be taken, all appropriate action, to do, or cause to be done, all things reasonably necessary, proper or advisable under Applicable Law, and to execute and deliver such documents and other papers, as may be required to carry out the provisions of this Agreement and make effective the transactions contemplated by this Agreement as promptly as possible (including, without limitation, the satisfaction of the applicable conditions set forth in Section 2.4). Without limiting the generality of the foregoing, each Purchaser shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate obtain the Equity Financing contemplated by the Equity Commitment Letter in accordance with the terms and make effective as promptly as reasonably practicable subject to the Transactions (conditions set forth therein, including (i) maintaining in effect such Equity Commitment Letter in accordance with its terms, (ii) satisfying on a timely basis all conditions applicable to such Purchaser in such Equity Commitment Letter and (iii) subject to the satisfaction or waiver of the closing conditions set forth in Article IX such Equity Commitment Letter, consummating the Equity Financing at or prior to the Closing, in each case, in accordance with the terms and (ii) using reasonable best efforts subject to obtain PIPE Investments as contemplated by Section 8.04)the conditions set forth therein. Without limiting the generality of the foregoing, each of the Parties Neither Purchaser shall use reasonable best efforts to obtain, file with or deliver agree to, as applicableor permit, any consents of any Governmental Authorities amendment or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose modification of, or hold separate and agree to sell, license waiver or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorconsent under, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the AgreementEquity Commitment Letter, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)CPPIB.
(db) If Acquiror For the avoidance of doubt, each Purchaser acknowledges that CPPIB may retain all rights in respect of any and all agreements between CPPIB and Enstar, including the Shareholder Rights Agreement, dated June 3, 2015, and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12Registration Rights Agreement, 2023 (the “Acquiror Termination Date”)dated as of April 1, then (i) Acquiror shall call a special meeting of its stockholders to be held 2014, by and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30among Enstar, 2023 (such proposed extended deadlineFirst Reserve Fund XII, the “Extension Date”L.P., FR XII-A Parallel Vehicle, L.P., FR XI Offshore AIV, L.P., FR Torus Co- Investment, L.P., and such proposalCorsair Specialty Investor, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actionsL.P., as set forth amended, supplemented or otherwise modified from time to time, including by that certain Registration Rights Assignment Agreement, dated as of June 3, 2015, by and among the parties to such Registration Rights Agreement and CPPIB, in Section 8.02, (iii) each case to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained provided in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceagreement.
Appears in 2 contracts
Samples: Purchase Agreement (Enstar Group LTD), Purchase Agreement (Canada Pension Plan Investment Board)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Novo Nordisk and Strongbridge shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and Applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof, and in any event no later than the End Date, the Transactions, including (i) preparing as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all consents, approvals, clearances, waivers or orders necessary or advisable to be obtained from any Governmental Authority in order to consummate the satisfaction of Transactions (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts Party agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly within ten (and in any event within 10 10) Business Days) Days following the Original Agreement Date and date of this Agreement, (B) respond as promptly as reasonably practicable make all other required filings pursuant to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable Regulatory Laws with respect to the Transactions under the HSR Actas reasonably promptly as practicable, and (yC) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental Authority not to consummate the Transactions, except with the prior written consent of the other PartiesParties hereto. The Company will pay Each of Novo Nordisk and Strongbridge shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its reasonable best efforts to take all filing fees other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible and in any event no later than the End Date.
(b) Each of Novo Nordisk and Strongbridge shall, in connection with the actions referenced in Section 5.02(a) above to obtain all Governmental Approvals under the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Regulatory Laws, (i) sellcooperate in all respects with each other in connection with any communication, license filing or otherwise dispose ofsubmission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other Party and/or its counsel informed of any communication received by such Party from, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of given by such Party or any of its Affiliates to, the FTC, the DOJ or any other Person Governmental Authority and of any communication received or (ii) terminategiven in connection with any proceeding by a private party, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to in each case regarding any of the measures Transactions; (iii) consult with each other in advance of any meeting or conference with the foregoing sentence with respect to FTC, the DOJ or any other Party or any of its AffiliatesGovernmental Authority or, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, with any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or proceeding by telephonea private party, with any Governmental Authority in connection with the Transactions unless it consults withother Person, in the case of Acquiror and the Company, in advance and, to the extent not prohibited permitted by the FTC, the DOJ or such other Governmental AuthorityAuthority or other Person, gives, in give the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party and/or its counsel the opportunity to attend and participate in such meeting meetings and conferences; and (iv) permit the other Party and/or its counsel to review in advance any submission, filing or discussioncommunication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Authority; provided that such materials may be redacted to remove references concerning the valuation of the businesses of Strongbridge and Strongbridge Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, Novo Nordisk shall, on behalf of the Parties, control and lead all communications and strategy related to all Governmental Approvals, in each case after consulting and cooperating with and considering in good faith the views of Strongbridge. Novo Nordisk and Strongbridge may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 5.02(b) as “Antitrust Counsel Only Material”. Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Novo Nordisk or Strongbridge, as the case may be) or its legal counsel.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelycontained herein, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror parties hereto understand and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable agree that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts of any party hereto shall not be deemed to obtain approval from such stockholders prior include: (x) proposing, negotiating, committing to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline and effecting, by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30consent decree, 2023 (such proposed extended deadlinehold separate order, or otherwise, the “Extension Date”sale, divestiture or disposition of such businesses, product lines or assets of Novo Nordisk, Strongbridge and such proposaltheir respective Affiliates or (y) otherwise taking or committing to take actions that after the Closing would limit Novo Nordisk’s and/or its Affiliates’ (including Strongbridge and Strongbridge’s Subsidiaries’) freedom of action with respect to, the “Extension Proposal”)or its or their ability to operate and/or retain, (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval one or more of the Extension Proposal in accordance with the same effortsbusinesses, noticeproduct lines or assets of Novo Nordisk, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceStrongbridge and/or their respective Affiliates.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Strongbridge Biopharma PLC)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain the PIPE Investments as contemplated by Section 8.04). Financing on the terms and subject to the conditions set forth in the Subscription Agreements, and (iii) making all such filings with and obtaining all such approvals of Nasdaq to permit Holdco Shares to be issued in accordance with this Agreement to be listed on Nasdaq) and not to take any action after the date of this Agreement that would reasonably be expected to prevent, materially delay, or materially impair the consummation of the Transactions.
(b) Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to promptly obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions Transactions. Each of the Company, on the one hand, and FLAC, on the transactions contemplated by other, shall bear 50% of the Transaction Agreementscosts incurred in connection with obtaining such Consents, including any filing or similar fees with respect to any Antitrust Laws; provided that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (Ai) make all any appropriate filings or take, or cause to be taken, any required filings actions pursuant to the HSR Act any applicable Antitrust Laws with respect to the Transactions as promptly (and in any event within 10 Business Days) as practicable following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Actany Antitrust Laws. Acquiror FLAC shall promptly inform the Company of any communication between AcquirorFLAC, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror FLAC of any communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions Transactions. Subject to the terms of the Confidentiality Agreement, the Parties shall provide each other with copies of all material correspondence, filings or communications, including any documents, information and data contained therewith, between them or any Transaction Agreementof their Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transactions. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act any applicable Antitrust Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactions, except with the prior written consent of FLAC and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets, lines of business or assets facilities of the any Group Company or any entity, asset, line of their respective Subsidiaries business or any entity or asset facility of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of FLAC’s and the other Parties’ Company’s prior written consent. During .
(c) From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, AcquirorFLAC, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorFLAC) or Acquiror FLAC (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction AgreementsTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions unless it consults with, in the case of Acquiror and FLAC, the Company, or, in the case of the Company, FLAC in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and FLAC, the Company, or, in the case of either Company or Acquirorthe Company, FLAC, the opportunity to attend and participate in such meeting or discussion. The Parties agree to consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with judicial proceedings under or relating to any Antitrust Law.
(bd) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(ce) During From and after the Interim Perioddate of this Agreement until the earlier of the Final Closing Date or termination of this Agreement in accordance with its terms, AcquirorFLAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings Proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror FLAC, FLAC or any of its Representatives (in their capacity as a representative of AcquirorFLAC) or, in the case of the Company, any Group Company or any of their respective Representatives of the Company (in their capacity as a representative of the a Group Company). Acquiror FLAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction LitigationLitigation (to the extent such action would not jeopardize an attorney-client privilege or the attorney work product doctrine), (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other, including with respect to the defense, settlement and compromise of any such Transaction Litigation. Notwithstanding the foregoing, Acquiror the Company shall, subject to and without limiting the covenants and agreements, and the rights of the CompanyFLAC, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror the Company, any other Group Company or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of the Company FLAC (such consent not to be unreasonably withheld, conditioned or delayed, it being understood to be reasonable for FLAC to withhold, condition or delay its consent if any such settlement or compromise (A) does not provide for a full, unconditional and irrevocable release of FLAC and each Representative that is the subject of such Transaction Litigation, (B) provides for (x) the payment of cash any portion of which is payable prior to the Closing by FLAC or any Representative thereof or would otherwise constitute a FLAC Liability or (y) any non-monetary, injunctive, equitable or similar relief against FLAC or (C) contains an admission of wrongdoing or Liability by FLAC or any of its Representatives). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries FLAC or any of their respective its Representatives settle or compromise any Transaction Litigation without Acquirorthe Company’s prior written consent (not to be unreasonably withheld, contained or delayed)consent.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 2 contracts
Samples: Business Combination Agreement (NewAmsterdam Pharma Co N.V.), Business Combination Agreement (Frazier Lifesciences Acquisition Corp)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain consummate the PIPE Investments as contemplated by Section 8.04Financing on the terms and subject to the conditions set forth in the PIPE Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (Ai) make all submit notifications (including draft notifications, as applicable), filings, notices and other required filings submissions pursuant to the HSR Act Competition Laws of the other jurisdictions set forth on Schedule 8.01(a) with respect to the Transactions transactions contemplated by this Agreement as promptly (and in any event within 10 Business Days) as practicable following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority (including any Competition Authorities) for additional information and documentary material that may be requested pursuant to the HSR Actany Competition Laws. Acquiror SPAC shall promptly inform the Company of any communication between AcquirorSPAC, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act any Competition Laws or enter into any agreement with any Governmental Authority not to consummate the TransactionsTransactions or by the other Transaction Agreements, except with the prior written consent of SPAC and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Company.
(ib) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorSPAC) or Acquiror SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority (including any Competition Authorities) relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and SPAC, the Company, or, in the case of the Company, SPAC in advance and, to the extent not prohibited by such Governmental Competition Authority, gives, in the case of Acquiror and SPAC, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror SPAC or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions.
(cd) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, SPAC or any of its Representatives (in their capacity as a representative of AcquirorSPAC) or, in the case of the Company, or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, (i) SPAC and the rights of the Company, set forth in the immediately preceding sentence, Company shall jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that Litigation and (ii) in no event shall Acquiror SPAC (or any of its Representatives), on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 2 contracts
Samples: Merger Agreement (ironSource LTD), Merger Agreement (Thoma Bravo Advantage)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of satisfying the closing conditions set forth in Article IX and (ii) using reasonable best efforts consummating any PIPE Financing on the terms and subject to obtain PIPE Investments as the conditions contemplated by Section 8.04in connection therewith). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between AcquirorSPAC, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror SPAC or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions.
(c) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, SPAC or any of its Representatives (in their capacity as a representative of AcquirorSPAC) or, in the case of the Company, the Company or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, (i) SPAC and the rights of the Company, set forth in the immediately preceding sentence, Company shall jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that Litigation and (ii) in no event shall Acquiror SPAC (or any of its Representatives), on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 2 contracts
Samples: Merger Agreement (Silver Crest Acquisition Corp), Merger Agreement (Silver Crest Acquisition Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and 11, (iiy) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions Transactions, and (z) obtaining approval for listing Surviving Pubco Class A Shares issued pursuant to this Agreement on NYSE). All the transactions contemplated costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including any filing fees in connection with applicable Antitrust Law, and any fees associated with obtaining approval for listing Surviving Pubco Class A Shares issued pursuant to this Agreement on NYSE, shall be paid by the Transaction AgreementsHTP. Each Party shall make or cause to be made (Aand not withdraw) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act applicable Antitrust Law with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable after the date hereof. The Parties shall use commercially reasonable efforts to supply as promptly as practicable to any requests by any the appropriate Governmental Authority for Authorities additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror applicable Antitrust Law.
(b) Each Party shall promptly inform the Company of cooperate in connection with any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any investigation of the Transactions or litigation by, or negotiations with, any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable Governmental Authority or other Person relating to the Transactions or regulatory filings under applicable Law and obtaining approval for listing the HSR ActSurviving Pubco Class A Shares issued pursuant to this Agreement on NYSE.
(c) Each Party shall, in connection with the Agreement and the Transactions, to the extent permitted by applicable Law: (i) promptly notify the other Parties of, and if in writing, furnish the other Parties with copies of (yor, in the case of oral communications, advise the other Parties of) each Party and its respective Affiliates shall not extend any waiting period, review period material substantive communications from or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactionsor NYSE, except with the prior written consent of the other Parties. The Company will pay all filing fees (ii) cooperate in connection with the HSR Act when due any proposed substantive written or oral communication, filing, submission, with any Governmental Authority and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of permit the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity Parties to review and discuss in advance, and consider in good faith the views view of the other Parties, incorporating where reasonable, in connection with, any proposed substantive written communication to or oral communication, filing or submission with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees NYSE, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions or NYSE unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental AuthorityAuthority or NYSE, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant Parties’ outside legal counsel with copies of all filings and communications between it and any such Governmental Authority or agreement shall govern and control solely to the extent of such conflict NYSE and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority or NYSE; provided that, materials required to be provided pursuant to this Section may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (ivB) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not remove references to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)privileged information.
(d) If Acquiror No Party shall take any action that could reasonably be expected to adversely affect or materially delay the approval of any Governmental Authority, or the expiration or termination of any waiting period under Antitrust Laws, including by agreeing to merge with or acquire any other person or acquire a substantial portion of the assets of or equity in any other person. The Parties further covenant and agree, with respect to a threatened or pending preliminary or permanent injunction or other Governmental Order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the Company determine in good faith that it is probable that ability of the Transactions will not be consummated on or before March 12parties to consummate the Transactions, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to prevent or lift the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30entry, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actionsenactment or promulgation thereof, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencecase may be.
Appears in 2 contracts
Samples: Merger Agreement (Highland Transcend Partners I Corp.), Merger Agreement (Highland Transcend Partners I Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and Seller shall use its reasonable best efforts to obtain approval take all actions and do all things necessary to consummate, as soon as reasonably practicable, the transactions contemplated hereby and by the other Transaction Documents, including, without limitation, preparing the Assets of the Purchased Subsidiary and its Subsidiaries for transfer to the Buyer, satisfying the conditions to the Buyer's obligation to consummate the transactions contemplated hereby and avoiding taking any action that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any Consent or Order from such stockholders any Person prior to the Acquiror Termination Date Closing. In the event that the Buyer, from time to time prior to the Closing, requests assistance from the Seller that the parties agree is beyond the scope of a proposal the foregoing commitment, the Seller shall use its reasonable best efforts to amend provide such assistance to the Acquiror Organizational Documents extent that it has sufficient resources reasonably available to extend fulfill such requests and the deadline by which Acquiror is required Buyer shall reimburse the Seller for the reasonable expenses (including employee time) of fulfillment.
(b) The Buyer shall use its reasonable best efforts to take all action and do all things necessary to consummate, as soon as reasonably practicable, the transactions contemplated hereby, including, without limitation, completing the 144A Offering and satisfying the conditions to the Seller's obligation to consummate the Transactions transactions contemplated hereby and avoiding taking any action that would reasonably be expected to a date that is no earlier than June 30materially delay the obtaining of, 2023 or result in not obtaining, any Consent or Order from any Person prior to the Closing.
(such proposed extended deadline, c) The Buyer and the “Extension Date”Seller will cooperate in good faith and each will use its reasonable best efforts to obtain any Consents from any Person necessary or advisable in order to effectively transfer and convey the Purchased Shares and the Assets of the Purchased Subsidiary and its Subsidiaries at the Closing, and the Buyer will bear and be responsible for the costs associated with obtaining such proposalConsents.
(d) The parties will cooperate in good faith and each will use commercially reasonable efforts to support the efforts of the other in obtaining all Consents or Orders required from the Wisconsin Office of the Commissioner of Insurance and all other Governmental Bodies, including any GSE, including but not limited to the “Extension Proposal”)Seller making available to the Buyer any and all policies, procedures and documentation that may be useful to the Buyer in developing its policies, procedures and business practices for submission to any Governmental Body, and each party providing the other a reasonable opportunity to review and comment on any proposed regulatory filings related to the transactions contemplated hereby and giving due consideration to such party's comments thereon.
(e) After the date hereof, each of the Buyer on the one hand and the Seller on the other hand shall (i) consult with the other prior to sending any notices to, making any filings with, or having any communications with any Person with respect to the transactions contemplated by this Agreement, (ii) Acquiror prior to the Closing, promptly consult with the other with respect to, provide any necessary information with respect to, and provide the other (or its counsel) with copies of, all notices sent, all filings made or any other information supplied by such party to a Person in connection with this Agreement and the Company shall cooperate with the preparation, filing transactions described herein and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to promptly inform the extent required to obtain approval other of any communication from any Person regarding any of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date transactions contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceherein.
Appears in 2 contracts
Samples: Stock Purchase Agreement (NMI Holdings, Inc.), Stock Purchase Agreement (NMI Holdings, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent, Amalgamation Sub and the Parties Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.047). Without limiting Each of Parent, Amalgamation Sub and the generality of the foregoing, each of the Parties Company shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions transactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents, including the filing fees under the HSR Act and other Antitrust Laws, shall be borne equally by Parent and the Company. Each Party shall make an appropriate filing, if necessary, pursuant to the HSR Act and all other filings required by applicable Antitrust Laws with respect to the transactions contemplated by this Agreement promptly (and in any event, within fifteen (15) Business Days in the Transaction Agreements. Each Party shall (A) make all required case of filings pursuant to the HSR Act with respect to Act, and within twenty (20) Business Days in the Transactions promptly (and in any event within 10 Business Dayscase of all other filings required by applicable Antitrust Laws) following after the Original Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the Act or other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction AgreementAntitrust Laws. Without limiting the foregoing, (xi) Parent, Amalgamation Sub and the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, Company and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or other Antitrust Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The , and (ii) each Party shall, and shall cause its Affiliates to, take all actions that are reasonably necessary or as may be required by any Governmental Entity to expeditiously consummate the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of Section 6.5(a), (i) as soon as reasonably practicable following the Original Agreement Date (and in any event, within twenty (20) Business Days), the Company will pay and Parent shall cooperate in all filing fees respects with each other and use (and shall cause their respective Affiliates to use) their respective reasonable best efforts to prepare and file with the relevant insurance regulators requests for approval of the transactions contemplated by this Agreement (and amend filings, re-file and/or make new filings, if and when necessary, as soon as reasonably practicable) and shall use reasonable best efforts to have such insurance regulators approve the transactions contemplated by this Agreement to the extent approval is required under applicable Law, (ii) within a reasonable time prior to furnishing the same to any insurance regulator, each Party shall provide all applications with the insurance regulators to the other Parties in advance for their approval (such approval not to be unreasonably withheld, conditioned or delayed) and each Party shall have a reasonable opportunity to provide comments thereon, (iii) the Company and Parent shall give the other party prompt written notice if it receives any material notice or other communication from any insurance regulator in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults withand, in the case of Acquiror and the Companyany such written notice or communication, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on promptly furnish the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as party with a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigationcopy thereof, and (iv) to the extent reasonably cooperate practicable, each Party shall provide all substantive correspondence with each other. Notwithstanding the foregoing, Acquiror shall, subject insurance regulators to and without limiting the covenants and agreements, and the rights of the Company, set forth other Parties in the immediately preceding sentence, control the negotiation, defense and settlement of any advance for their approval (such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (approval not to be unreasonably withheld, conditioned or delayed). Without limiting The Company and Parent shall have the generality right to participate in and shall, to the extent reasonably practicable, receive reasonable prior notice of, all meetings (telephonic or otherwise) of the foregoingother party with any insurance regulators in respect of the transactions contemplated by this Agreement; provided, however, that nothing in no this Section 6.5 shall require either Parent or Company to provide or cause to be provided to the other confidential information submitted to any Governmental Entity or the portions of notices or other communications received from or with Governmental Entities relating or referring to confidential information.
(c) In the event shall any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, Parent, Amalgamation Sub and the Company agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or its Subsidiaries other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)the transactions contemplated hereby.
(d) If Acquiror Notwithstanding anything to the contrary set forth in this Section 6.5 or any other section of this Agreement, none of Parent, Amalgamation Sub or any of their Affiliates shall be required to, and the Company determine may not, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, or otherwise take any action or refrain from taking any action or agree or commit to any condition, limitation, restriction or requirement of any Governmental Entity (except as set forth in good faith Schedule 6.5) that it is probable would materially adversely affect the economic benefits reasonably expected to be derived by Parent under this Agreement or in connection with the consummation of the transactions contemplated hereunder (a “Burdensome Condition”); provided that, in the event that a Governmental Entity requires that the Transactions will not terms of this Agreement be consummated on changed or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call altered in a special meeting of its stockholders manner that adversely affects any such benefits reasonably expected to be held and derived hereunder, each of the Parties shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror cooperate and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate negotiate in good faith to request agree to alternative terms to this Agreement that are acceptable to such Governmental Entity and effectuate further amendments provide benefits substantially similar to the Acquiror Organizational Documents to provide for additional extensions of benefits provided under the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceoriginal terms thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Amalgamation, Agreement and Plan of Amalgamation (Enstar Group LTD)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Purchaser, the Parties Sellers and the Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.047). Without limiting Each of Purchaser, the generality of Sellers and the foregoing, each of the Parties Company shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant this Agreement; provided that, notwithstanding anything in this Section 6.3 to the HSR Act with respect contrary, in no event shall such reasonable best effort include a requirement that Purchaser, the Sellers, the Company or any of their respective Affiliates sell, divest or otherwise dispose of or hold separately any assets, businesses or voting securities (or proffer or agree to the Transactions promptly (and in take such actions) as may be necessary to resolve any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by objections from any Governmental Authority for additional information and documentary material that may Entity. All costs incurred in connection with obtaining such consents shall be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication split evenly between Acquiror, on the one hand, and any Governmental Authority, on the other hand, Purchaser and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) Purchaser, the Parties agree to request early termination of all waiting periods applicable to Sellers and the Transactions under the HSR Act, Company and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay all filing fees .
(b) In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection with therewith, the HSR Act when due Parties agree to cooperate and use reasonable best efforts to defend against such fees shall be deemed 50% Company Transaction Expenses claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order lifted, and 50% Acquiror Transaction Expenses. Notwithstanding anything to cooperate reasonably regarding any other impediment to the contrary in this Agreement, nothing in this Section 8.01 consummation of the transactions contemplated hereby.
(c) Each Party hereto shall promptly notify the other Parties of any communication it or its Affiliates receives from any other provision Governmental Entity relating to the matters that are the subject of this Agreement obligates and permit the other Parties to review in advance any proposed communication by it to any Governmental Entity. No Party hereto shall agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate at such meeting. Each Party hereto will provide the other Parties with copies of all correspondence, filings or communications between it or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorrepresentatives, on the one hand, and the Companyany Governmental Entity or members of its staff, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, this Agreement and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)transactions contemplated by this Agreement.
(d) If Acquiror The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.3 as “outside counsel only.” Such materials and the Company determine in good faith that it is probable that information contained therein shall be given only to outside counsel of the Transactions recipient and will not be consummated disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. In addition, subject to applicable law, the Parties shall consult and cooperate with each other in advance in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and proposals made or submitted to any Governmental Entity regarding the transactions contemplated by this Agreement by or on behalf of any party hereto.
(e) Purchaser shall not, and shall cause its Affiliates and ultimate parent entities and their respective Subsidiaries not to, acquire or before March 12agree to acquire, 2023 (by merging with or into or consolidating with, or by purchasing a portion of the “Acquiror Termination Date”)assets of or equity in, then or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation would reasonably be expected to: (i) Acquiror shall call a special meeting impose any delay in the obtaining of, or increase the risk of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date not obtaining, any consents of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required any Governmental Entity necessary to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), transactions contemplated by this Agreement; (ii) Acquiror and increase the Company shall cooperate with risk of any Governmental Entity seeking or entering a Governmental Order prohibiting the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval consummation of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, transactions contemplated by this Agreement; (iii) increase the risk of not being able to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit remove any such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and order on appeal or otherwise; or (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on delay or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to prevent the consummation of a business combination in accordance with the foregoing sentencetransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Better Choice Co Inc.), Stock Purchase Agreement (Better Choice Co Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Sellers, Buyer and the Company shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as promptly as reasonably practicable after the Transactions (date hereof the transactions contemplated by this Agreement, including (i) preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts as promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly transactions contemplated hereby within five (and in any event within 10 5) Business Days) following Days of the Original Agreement Date and date of this Agreement, (B) respond make all other required filings pursuant to other Regulatory Laws with respect to the transactions contemplated hereby as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Actpracticable, and (yC) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the FTC or the DOJ or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Partiesparty hereto (which shall not be unreasonably withheld, conditioned or delayed). The Company will pay all filing fees in connection with Each Party shall supply as promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act when due or any other Regulatory Law and such fees shall be deemed 50% Company Transaction Expenses use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and 50% Acquiror Transaction Expensesany other Regulatory Law as soon as possible. Notwithstanding anything to the contrary in this Agreementcontained herein, nothing in this Section 8.01 Agreement shall require the Buyer to arrange or any other provision obtain Financing that is not Acceptable Financing.
(b) Each of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, AcquirorBuyer, on the one hand, and Sellers and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company)shall, a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults withactions referenced in Section 6.5(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed of any communication received by such party from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the case transactions contemplated hereby; (iii) consult with each other in advance of Acquiror and any meeting or conference with the CompanyFTC, the DOJ or any other Governmental Entity or, in advance andconnection with any proceeding by a private party, with any other person, and to the extent not prohibited permitted by the FTC, the DOJ or such other Governmental AuthorityEntity or other person, gives, in give the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other party and/or its counsel the opportunity to attend and participate in such meeting meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or discussion.
communication (band documents submitted therewith) Notwithstanding anything intended to be given by it to the contrary in FTC, the AgreementDOJ or any other Governmental Entity; provided, (i) if that materials may be redacted to remove references concerning the valuation of the businesses of the Company and its Subsidiaries. Buyer, Sellers and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement 6.5(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall govern and control solely be given only to the extent outside antitrust counsel of the recipient and will not be disclosed by such conflict and outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (ii) in no event shall Acquiror Buyer, Sellers, or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consentsCompany, authorizations or approvals pursuant to as the terms of any Contract to which the Company case may be) or its Subsidiaries is a partylegal counsel.
(c) During the Interim Period, Acquiror, on the one hand, In furtherance and the Company, on the other hand, shall each notify the other not in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case limitation of the Company, or any respective Representatives covenants of the Company (parties contained in their capacity as a representative Sections 6.5(a) and 6.5(b), each of the Company). Acquiror Buyer, Sellers and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the Acquiror Termination Date of a proposal to amend transactions contemplated by this Agreement by the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadlineFTC, the “Extension DOJ or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the Closing to occur as soon as possible (and in any event no later than the Termination Date”), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of Buyer, the Company and their respective Subsidiaries, (y) otherwise taking or committing to take actions that after the Closing would limit Buyer’s and/or its Subsidiaries’ freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines or assets of Buyer, the Company and/or their respective Subsidiaries, and such proposal(z) agreeing to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Buyer’s or Buyer’s Subsidiaries’ ability to operate or retain, any of the businesses, product lines or assets of Buyer, the “Extension Proposal”Company or any of their respective Subsidiaries; provided, however, that any action contemplated by clauses (x), (y) and (z) is conditioned upon the consummation of the transactions contemplated by this Agreement and that nothing contained in this Agreement shall require Buyer to take any actions specified in this Section 6.5(c) that would reasonably be expected to have a Buyer Material Adverse Effect on a pro forma basis assuming the consummation of the transactions contemplated hereby.
(d) Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Closing Date, each of Buyer and each Seller shall not, and shall cause its Subsidiaries and controlled Affiliates to not, take or agree to take any action that would reasonably be expected to prevent the parties from obtaining any Governmental Approval in connection with the transactions contemplated by this Agreement, or to prevent or materially delay or impede the consummation of the transactions contemplated herein including obtaining Acceptable Financing.
(e) Sellers and the Company shall give prompt written notice to Buyer, and Buyer shall give prompt written notice to Sellers and the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in ARTICLE 7 and such written notice shall specify the condition which has failed or will fail to be satisfied, (ii) Acquiror and any written notice from any Person alleging that the Company shall cooperate consent of such Person is or may be required in connection with the preparation, filing transactions contemplated by this Agreement and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained any written notice from any Governmental Entity in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance connection with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date transactions contemplated by this Agreement; provided, that the Extension Proposal. If, following delivery of any such approval of notice pursuant to this Section 6.5(e) shall not limit or otherwise affect the Extension Proposal, Acquiror remedies available hereunder to Buyer or Sellers and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceCompany.
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Samples: Purchase Agreement (Phillips Van Heusen Corp /De/), Purchase Agreement (Tommy Hilfiger Holding Sarl)
Efforts to Consummate. (a) Subject to the terms and conditions hereinof this Agreement, each of the Parties party shall use their respective commercially reasonable best efforts to take, take or cause to be taken, taken all actions and to do, do or cause to be done, done all things reasonably necessary or advisable required under all applicable Laws, Orders and Contracts in order to consummate and make effective as promptly as reasonably practicable the Transactions (transactions contemplated hereby, including (i) all commercially reasonable efforts to obtain or make from or with all Persons all such consents, approvals, authorizations, waivers, notifications and filings as are required to be obtained or made by such party under such Laws, Orders and Contracts for the satisfaction consummation of the closing conditions set forth in Article IX transactions contemplated hereby (including the filing of all notification and reports forms and other information required under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")), and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company)Seller Group, a all commercially reasonable opportunity efforts to review assist the Purchaser in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and replacing the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror 's performance bonds and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigationguarantees; provided, however, that in no event nothing contained herein shall Acquiror settle require the Purchaser to undertake any action, including the divestiture of any assets or compromise any Transaction Litigation without properties, that may be required to obtain the prior written consent or approval of the Company (not to be unreasonably withheld, conditioned United States Federal Trade Commission or delayed). Without limiting the generality Department of Justice for the consummation of the foregoingtransactions contemplated hereby. The Company and each of its Subsidiaries shall take all commercially reasonably actions and do all things, in no event and the Stockholder shall cause the Company or and each of its Subsidiaries to take all actions and do all things, required to extinguish at or prior to the Closing all Funded Indebtedness and to release any and all Encumbrances on or affecting any of the Company's or any of their respective Representatives settle the its Subsidiaries' assets or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheldproperties, contained or delayed).
(d) If Acquiror other than the Permitted Encumbrances. The Company and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and Stockholder shall use its commercially reasonable best efforts to obtain approval from such stockholders prior procure that legal title to all the Shares is transferred to the Acquiror Termination Date Stockholder to hold them as nominee for the Shareholders until Closing, including, without limitation, complying with all requirements of a proposal the Financial Services and Markets Axx 0000 and all regulations made thereunder. Purchaser shall use commercially reasonably efforts to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and assist the Company shall cooperate and Stockholder in complying with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval all requirements of the Extension Proposal in accordance with the same efforts, notice, consent Financial Services and other cooperation standards applicable to the preparation, filing Markets Axx 0000 and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceall regulations made thereunder.
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Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 7 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement and (ii) using reasonable best efforts the Company taking, or causing to obtain PIPE Investments be taken, all actions necessary or advisable to cause the agreements set forth on Section 6.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, Acquiror)). Without limiting the generality of the foregoing, each of the Parties shall use commercially reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions Transactions, including preparing and submitting any required notices related to any registrations obtained by any Company Group Member from any Governmental Entity and preparing and submitting any requests to amend or novate any Permits related to Trade Controls that may be necessary as a consequence of the transactions contemplated by Transactions. The Company shall bear the Transaction Agreementscosts incurred in connection with obtaining such Consents, including the HSR Act filing fee; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions promptly within ten (and in any event within 10 10) Business Days) Days following the Original date of this Agreement Date and any appropriate filings required by the Antitrust Laws other than the HSR Act promptly following the date of this Agreement and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR ActAct or any such other Antitrust Law. Acquiror shall promptly inform the Company of any communication between Acquirorany Acquiror Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror of any communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions or any Transaction AgreementTransactions. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactions, except with the prior written consent of Acquiror and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 6.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or Company, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, (3) amend, assign or terminate existing licenses or other agreements, or (4) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of Xxxxxxxx’s and the other Parties’ Company’s prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, Acquirorthe Acquiror Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Acquiror Party) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction AgreementsTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions unless it consults with, in the case of any Acquiror and the CompanyParty, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, the opportunity to attend and participate Acquiror in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 6.2 conflicts with any other covenant or agreement in this Agreement Article 6 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
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Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions of the other Parties set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE the Investments as contemplated by Section 8.04on the terms and subject to the conditions set forth in the Subscription Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original date of this Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquirorany Acquiror Party, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActAct (to the extent early termination is then available), and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company Acquiror will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorthe Acquiror Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Acquiror Party) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and Acquiror, the Company, or, in the case of the Company, Acquiror, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and Acquiror, the Company, or, in the case of either Company or the Company, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall the Acquiror Parties or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of its their respective Representatives (in their capacity as a representative of Acquiroran Acquiror Party) or, in the case of the Company, the Company or any of its Subsidiaries or any of their respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or Company, any of its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)consent.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent, Merger Sub and the Parties Company shall use their respective its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under Applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX ARTICLE VI). Notwithstanding the foregoing, each of Parent, Merger Sub and (ii) using the Company shall use their reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated Transactions. All HSR Act filing fees shall be borne by the Transaction AgreementsParent. Each Party party hereto shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions promptly (and in any event event, within 10 ten (10) Business Days) following after the Original date of this Agreement Date (which such filings shall request early termination of the waiting period under the HSR Act) and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActParent, Merger Sub, and (y) each Party and its their respective Affiliates shall not extend (or take any action with the effect of extending) any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with Company, and (ii) Parent and Merger Sub agree to take (and Parent’s and Merger Sub’s “reasonable best efforts” shall expressly include the HSR Act when due taking of), and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its cause their Affiliates to agree take, all actions that may be required by any Governmental Entity to expeditiously consummate the Transactions, including (iA) selling, licensing or otherwise disposing of, or holding separate and agreeing to sell, license or otherwise dispose of, or hold separate and agree proposing or negotiating to selldo the same for (i) any entities, license assets or otherwise dispose of, facilities of any entities or assets of Group Company after the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person Closing or (ii) terminateany entity, amend facility or assign any assets of Parent or its Affiliates before or after the Closing, (B) terminating, modifying, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party), (C) amending, assigning or obligations. No Party shall agree terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements, (D) modifying any course of conduct regarding future operations of Parent or Merger Sub or any of their Affiliates or with respect to any of the measures in the foregoing sentence businesses, assets, rights or interested to be acquired pursuant to this Agreement and (E) otherwise taking or committing to take any other action that limits or would limit Parent or Merger Sub or any of their Affiliates’ freedom of action with respect to the businesses, assets, rights or interested to be acquired pursuant to this Agreement; provided, that nothing set forth in this Section 5.4(a) shall require Parent, Merger Sub or their Affiliates to take or consent to any action that is not conditioned on the consummation of the Closing.
(b) Prior to the Effective Time, Parent and Merger Sub shall not, and shall cause their Affiliates not to, directly or indirectly acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other Party manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of its Affiliatesnot obtaining, except with each any permits, orders or other approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Entity entering an order prohibiting the consummation of the other Parties’ prior written consent. During Merger, (iii) increase the Interim Periodrisk of not being able to remove any such order on appeal or otherwise, Acquiror, on or (iv) delay or prevent the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case consummation of the Company)Merger.
(c) In the event any claim, a reasonable opportunity to review in advanceaction, and consider in good faith suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the views validity or legality of the other transactions contemplated hereby or seeks damages in connection withtherewith, any proposed written communication the parties hereto agree to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance cooperate and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed necessary to satisfy the conditions set forth in Section 9.01(f)ARTICLE VI, Acquiror shall deposit use reasonable best efforts to defend against such additional amount of funds claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to the Trust Account (which deposit shall be funded by a loan from the Sponsor use reasonable best efforts to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), have such amount to be determined in good faith by Acquiror after consultation with its advisorsinjunction or other order lifted, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following cooperate reasonably regarding any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable other impediment to the consummation of a business combination in accordance with the foregoing sentencetransactions contemplated hereby.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the other Transaction Agreements. SPAC shall promptly inform the Company of any communication between any SPAC Party, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform SPAC of any communication between the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any other Transaction Agreement.
(b) Each Party shall use (Ai) its respective reasonable best efforts to make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original date of this Agreement Date and (Bii) shall respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform Notwithstanding anything to the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, contrary in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoingthis Section 8.01, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActAct (to the extent early termination is then available), and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will shall pay all filing fees and expenses owed to any Governmental Authority (including in connection with the filings under the HSR Act when due Act) with such payments (“Government Payments”) being treated as a Credited Expense and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to a Termination Expense.
(ic) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorthe SPAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany SPAC Party) or Acquiror SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the other Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the SPAC Parties, the Company, or, in the case of the Company, SPAC, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the SPAC Parties, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion; provided, however, that this subparagraph (c) shall not apply to any meeting or discussion the Company or any of its Subsidiaries has with a Governmental Authority who is an actual or potential customer of the Company or any of its Subsidiaries.
(bd) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror the SPAC Parties or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(ce) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of receiving any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, any of the SPAC Parties or any of its their respective Representatives (in their capacity as a representative of Acquirora SPAC Party) or, in the case of the Company, Company or any of its Subsidiaries, any of their respective Representatives of the Company (in their capacity as a representative of a member of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in In no event shall Acquiror the Company or SPAC settle or compromise compromise, or allow to be settled or compromised, any Transaction Litigation without the prior written consent of SPAC or the Company Company, respectively (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Domestication and the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE the Investments as contemplated by Section 8.04on the terms and subject to the conditions set forth in the Subscription Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Domestication, the Transactions and the other transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original date of this Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company Parties of any communication between Acquirorany Acquiror Party, on the one hand, and any Governmental Authority, on the other hand, and the each Company Party shall promptly inform Acquiror and the other Company Party of any communication between either Companyany Company Group Member, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding the Domestication, any of the Transactions Transactions, any other Transaction Agreement or any Transaction Agreementof the other transactions contemplated thereby. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Domestication or any of the Transactions, except with the prior written consent of the other Parties. The Company Acquiror will pay all filing fees in connection with the HSR Act Act, and will pay any and all similar filing fees regarding regulatory or Governmental Authority approval in connection with the Domestication and the Transactions, including, but not limited to filing of the Registration Statement, when due and such fees shall be deemed 50% Company Transaction Expenses and 50100% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the either Company Party or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorthe Acquiror Parties, on the one hand, and the CompanyCompany Parties, on the other hand, shall give counsel for the Company ZF and IDX (in the case of Acquirorany Acquiror Party) or Acquiror and the other Company Party (in the case of the CompanyCompany Parties), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror, ZF and IDX, or, in the case of either Company Party, Acquiror and the Companyother Company Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror Acquiror, ZF and the CompanyIDX, or, in the case of either Company or AcquirorParty, Acquiror and the other Company Party, the opportunity to attend and participate in such meeting or discussion.
(b) In furtherance of, and without limiting the foregoing, the Parties shall use reasonable best efforts to take the actions specified on Schedule 8.01(b).
(c) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall the Acquiror Parties or the Company Parties be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the either Company Party or its Subsidiaries is a party.
(cd) During the Interim Period, Acquiror, on the one hand, Acquiror and the Company, on the other hand, Company Parties shall each notify the other Parties in writing promptly after learning of any shareholder demands (including without limitation stockholder demands for appraisal pursuant to Section 262 of the DGCL) or other shareholder or stockholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of its their respective Representatives (in their capacity as a representative of Acquiroran Acquiror Party) or, in the case of the CompanyCompany Parties, any member of the applicable Company Group or any of their respective Representatives of the Company (in their capacity as a representative of a member of the CompanyCompany Group). Acquiror and the Company Parties shall each (i) keep the other Parties reasonably informed regarding any Transaction Litigation, (ii) give the other Parties the opportunity to, at its their own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other Parties in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s other Parties’ advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall (x) Acquiror or any of its respective Representatives settle or compromise any Transaction Litigation without the prior written consent of the Company Parties (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the or (y) any Company or its Subsidiaries Party or any of their respective its Representatives settle or compromise any Transaction Litigation without Acquiror’s the prior written consent of Acquiror and the other Company Party (not to be unreasonably withheld, contained conditioned or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (L&F Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 7 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and delivery of such Ancillary Document, (ii) using reasonable best efforts to obtain the PIPE Investments Financing on the terms and subject to the conditions set forth in the Subscription Agreements, (iii) the Company taking all actions necessary or advisable to cause the agreements set forth on Section 6.2(a) of the Company Disclosure Schedules to be, subject to any conditions precedent expressly set forth thereon, terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to Holdco or any of its Affiliates (including the Group Companies or Qell) and (iv) making all such filings with and obtaining all such approvals of Nasdaq to permit Holdco Shares to be issued in accordance with this Agreement to be listed on Nasdaq,). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to promptly obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities or other Persons necessary that Qell and the Company determine are necessary, proper or advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction Agreements. Each Party shall (A) make all Ancillary Documents and for any Consent required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to under the HSR Act, shall make all filings as required no later than fifteen (15) Business Days after the date hereof). Acquiror The Company shall bear the costs incurred in connection with obtaining such Consents; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Qell and Holdco shall promptly inform the Company of any communication between AcquirorQell or Holdco, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror Qell and Holdco of any communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction Agreement. Without limiting Ancillary Document.
(b) From and after the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision date of this Agreement obligates until the earlier of the Closing or termination of this Agreement in accordance with its terms, the Parties will keep each other apprised of the status of matters relating to any Party Consent of any Governmental Entity contemplated by this Agreement or any of its Affiliates to agree to Ancillary Document, including: (i) sellgive the counsel for, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) Qell or Acquiror (Holdco, or, in the case of the Company), Qell and Holdco a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to any Consent of any Governmental Entity contemplated by this Agreement or any Ancillary Document; (ii) furnishing to each other all information required for any application or other filing to be made pursuant to any Antitrust Law in connection with the Transactions transactions contemplated by this Agreement or the Transaction Agreements. Each of the Parties agrees Ancillary Documents; (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions any Consent of any Governmental Entity contemplated by this Agreement unless it consults with, in the case of Acquiror and Qell or Holdco, the Company, or, in the case of the Company, Qell and Holdco in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and Qell or Holdco, the Company, or, in the case of either Company or Acquirorthe Company, Qell and Holdco, the opportunity to attend and participate in such meeting or discussiondiscussion and (iv) consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of either Party in connection with judicial proceedings under or relating to any Antitrust Law. If either Party thereof receives a request for additional information or documentary material from any such Governmental Entity with respect to the transactions contemplated by this Agreement or the Ancillary Documents, then such Party will use its reasonable best efforts to make, or cause to be made, as expeditiously as possible and after consultation with the other Party, an appropriate response to such request. If, following the date of this Agreement, either Party reasonably believes, or receives notice from a Governmental Entity, that any Consent is required in connection with the Transaction, and which is not otherwise contemplated by this Agreement or any Ancillary Document, the Parties undertake to cooperate with one another in ascertaining the veracity of such requirement, and thereafter procuring such Consent (if so required) in accordance with this Section 6.2.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 6.2 conflicts with any other covenant or agreement in this Agreement Article 6 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Qell Acquisition Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as promptly as reasonably practicable after the Transactions (date hereof the transactions contemplated by this Agreement, including (i) preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX "Governmental Approvals") and (ii) using reasonable best efforts as promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event transactions contemplated hereby within 10 ten Business Days) following Days of the Original Agreement Date and date of this Agreement, (B) respond make all other required filings pursuant to other Regulatory Laws with respect to the transactions contemplated hereby as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (yC) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the FTC or the DOJ or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees party hereto (which shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting Parent and the generality Company shall supply as promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the foregoingapplicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible.
(b) Each of Parent and the Company shall, in no event shall connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Laws (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed of any communication received by such party from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of the Company and its Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(b) as "Antitrust Counsel Only Material." Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its Subsidiaries legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.03(a) and 6.03(b), Parent and the Company shall take any and all steps not prohibited by Law to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the Closing to occur as soon as possible (and in any event no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of Parent, the Company and their respective Subsidiaries, and (y) otherwise taking or committing to take actions that after the Closing would limit Parent's and/or its Subsidiaries' (including the Company's and the Company Subsidiaries') freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines or assets of Parent, the Company and/or their respective Subsidiaries; provided, however, that any action contemplated by clauses (x) and (y) is conditioned upon the consummation of the transactions contemplated by this Agreement and that nothing contained in this Agreement shall require Parent to take any actions specified in this Section 6.03(c) that would reasonably be expected in the aggregate to have a Material Adverse Effect on Parent, its Subsidiaries, the Company and the Company Subsidiaries, taken as a whole.
(d) The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied, (ii) any written notice 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 (iii) any written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(d) shall not limit or otherwise affect the remedies available hereunder to Parent or the Company.
(e) Notwithstanding anything else contained in this Agreement, during the term of this Agreement neither the Company nor any of its Affiliates or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing any other Person in seeking regulatory clearance of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension any Alternative Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Merger Agreement (PVH Corp. /De/)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as promptly as reasonably practicable after the Transactions (including date hereof the transactions contemplated by this Agreement, including
(i) preparing and filing with applicable Governmental Entities as promptly as reasonably practicable all necessary applications, notices, disclosures, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX and “Governmental Approvals”), (ii) using reasonable best efforts as promptly as reasonably practicable taking all steps as may be necessary to obtain PIPE Investments as all such Governmental Approvals, and (iii) obtaining any Consents required from third parties (other than Governmental Approvals) in connection with the consummation of the transactions contemplated by Section 8.04). Without limiting the generality this Agreement.
(b) In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (Ai) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event transactions contemplated hereby within 10 Business DaysDays of the date of this Agreement, (ii) following the Original Agreement Date and (B) respond supply as promptly soon as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform , (iii) use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 6.03 necessary to cause the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any expiration or termination of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all applicable waiting periods applicable to the Transactions under the HSR ActAct (including any extensions thereof) as soon as practicable, (iv) make the appropriate filings under any foreign Antitrust Laws as soon as practicable, (v) supply as soon as reasonably practicable any additional information and documentary material that may be required or requested by any Governmental Entity (including by complying with any “second request” for information or similar request from a Governmental Entity), (vi) use its reasonable best efforts to take or cause to be taken all other actions consistent with this Section 6.03 as necessary to obtain any necessary approvals, consents, waivers, permits, authorizations or other actions or non-actions from each Governmental Entity as soon as practicable, and (yvii) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or other Regulatory Laws, or enter into any agreement with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Partiesparties hereto (which shall not be unreasonably withheld, conditioned or delayed).
(c) Parent and the Company shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other applicable Law and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Law as soon as possible (including complying with any “second request” for information or similar request from a Governmental Entity pursuant to other applicable Laws).
(d) In connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement, each of Parent and the Company shall, and shall cause their respective Affiliates to, (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel promptly informed of any communication received by such party from, or given by such party to, the FTC, the DOJ, CFIUS or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ, CFIUS or any 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, CFIUS or such other Governmental Entity or other Person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences; (iv) consider in good faith the views of the other party and keep the other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement; and (v) permit the other party and/or its counsel to review in advance, with reasonable time and opportunity to comment, give reasonable consideration to the other party’s comments thereon, and consult with each other in advance of any proposed submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ, CFIUS or any other Governmental Entity; provided that materials may be redacted (x) as necessary to comply with applicable Law and (y) to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(e) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.03(a)–(d), but subject to Section 6.03(g), Parent and the Company shall take any and all steps not prohibited by Law to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any Judgment or injunction, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including defending (with sufficient time for resolution in advance of the End Date) through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ, CFIUS or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any (x) Regulatory Law, and (y) to the extent applicable, CFIUS, so as, in each case, to enable the Closing to occur as soon as possible (and in any event no later than the End Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of Parent, the Company and their respective Subsidiaries, (B) terminating any existing relationships and contractual rights and obligations, terminating any venture or other arrangement, creating any relationship, contractual rights or obligations of Parent or the Company of any of their respective Subsidiaries, or effectuating any other change or restructuring of Parent, the Company or any of their respective Subsidiaries, (C) opposing, including through litigation and reasonably available avenues of appeal, (1) any administrative or judicial action or proceeding that is initiated or threatened to be initiated challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement and (2) any request for the entry of, and seek to have vacated or terminated, any order that would restrain, prevent or materially delay the consummation of the transactions contemplated by this Agreement, in the case of (1) and (2) as may be required in order to resolve any objections as a Governmental Entity (including, to the extent applicable, CFIUS) may have to such transactions under the HSR Act, any Regulatory Law or any other applicable Law and/or to avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement, (D) commencing and/or defending any suit, action or other proceeding before any court or other applicable Governmental Entity, and pursuing all reasonably available avenues of appeal thereto, as may be required in order to (1) resolve any objections as a Governmental Entity (including, to the extent applicable, CFIUS) may have to such transactions under the HSR Act, any Regulatory Law or any other applicable Law and (2) avoid the entry of, or to effect the dissolution, vacating, lifting, altering or reversal of, any order that has the effect of restricting, preventing or prohibiting the consummation of the transactions contemplated by this Agreement, (E) otherwise taking or committing to take actions that after the Closing would limit Parent’s and/or its Subsidiaries’ (including the Company’s and the Company Subsidiaries’) freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines or assets of Parent, the Company and/or their respective Subsidiaries, and (F) in connection with CFIUS review or investigation of the transactions contemplated by this Agreement and the Statutory Merger Agreement (if such review or investigation is so initiated by CFIUS), take any action or accept any condition or restriction required by CFIUS (including entering into any mitigation agreement with CFIUS as may be required); provided, however, that any action contemplated by clauses (A), (B), (C), (D), (E) and (F) is conditioned upon the consummation of the transactions contemplated by this Agreement.
(f) The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice shall specify the condition which has failed or will pay all filing fees fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the HSR Act when due transactions contemplated by this Agreement to the extent such consent is material to the Company and such fees the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(f) shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. not limit or otherwise affect the remedies available hereunder to Parent or the Company.
(g) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party no event will Parent or any of its Affiliates to agree to be required (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation Company Subsidiary agree without Acquiror’s the prior written consent of Parent) to take any action (not including entering into any consent decree, hold separate order or other arrangement), or to permit or suffer to exist any material restriction, condition, limitation or requirement, that (when taken together with all other such actions, restrictions, conditions, limitations and requirements) would reasonably be unreasonably withheldexpected to result in a material adverse effect on the business, contained operations or delayedfinancial results of the Surviving Company and its Affiliates (including Parent and its Affiliates); provided that nothing in this Section 6.03(g) will limit Parent ’s obligations under Section 6.03(e)(ii)(F) to take any action or accept any condition or restriction required by CFIUS (including entering into any mitigation agreement with CFIUS as may be required).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Merger Agreement (Marubeni Corp /Fi)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04)8). Without limiting the generality of the foregoing, each of Parent, Merger Sub and the Parties Company shall use commercially reasonable efforts to notify and to obtain consents of all Governmental Entities as necessary or advisable to consummate the transactions contemplated by this Agreement. Each Party (or Parent if Parent is the party required to make the filing pursuant to Applicable Law) shall make an appropriate filing if required or requested by a Governmental Entity pursuant to each competition, merger control, antitrust, fair trade or similar Applicable Law of any jurisdiction set forth on Schedule 8.1(a) (the “Antitrust Laws”) with respect to the transactions contemplated by this Agreement, at a time mutually agreed by Parent and the Company (and shall use their respective reasonable best efforts to obtain, file with make (or deliver to, if applicable assist Parent to make) such filing as soon as reasonably practicable after the date hereof or the date on which the Governmental Entity required or requested the filing) and thereafter each Party shall supply (or assist Parent in supplying as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any the appropriate Governmental Authority for Entities additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, such Antitrust Laws or in either case, regarding any view of the Transactions or any Transaction Agreementoperation of Section 8.1(b). Without limiting the foregoing, (xA) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, Company and (y) each Party and its respective Affiliates Parent shall not extend any waiting period, review period or comparable period under the HSR Act any Antitrust Law or enter into any agreement Contract with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The , and (B) Parent, Merger Sub and the Company will pay agree to take all filing fees actions that are reasonably necessary or reasonably advisable or as may be reasonably required by any Governmental Entity to consummate the transactions contemplated by this Agreement; provided, however, that in connection with the HSR Act when due and no event shall such fees shall efforts be deemed 50% to include (and the Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or shall not take any of its Affiliates to agree to the following actions without the prior written consent of Parent) (i1) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any entity, facility or asset of Parent or its Subsidiaries, (2) terminating, amending or assigning existing relationships and contractual rights and obligations, (3) agreeing to any behavioral remedies, (4) amending, assigning or terminating any existing Contracts and entering into any new Contracts, (5) effectuating any other change or restructuring of the Company or Parent or their respective Representatives settle Subsidiaries or compromise (6) defending, litigating or contesting any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheldadministrative, contained judicial or delayed)other governmental action or Proceeding or any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Merger Agreement (SYNAPTICS Inc)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and Article 10, (iiy) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated hereby, and (z) obtaining approval for listing the Surviving Pubco Class A Common Stock issued pursuant to this Agreement on Nasdaq). All the costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including HSR Act filing fees and any filing fees in connection with any other Antitrust Law, and any fees associated with obtaining approval for listing the Surviving Pubco Class A Common Stock issued pursuant to this Agreement on Nasdaq, shall be paid 50% by the Transaction AgreementsCompany and 50% by Silver Spike. Each Party shall make or cause to be made (Aand not withdraw) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as practicable after the date hereof (and in any event event, with respect to filings required under the HSR Act, within 10 ten (10) Business Days) following ). The Parties shall request early termination of the Original Agreement Date waiting period in any filings submitted under the HSR Act and (B) respond shall use commercially reasonable efforts to supply as promptly as reasonably practicable to any requests by any the appropriate Governmental Authority for Authorities additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Act or any other Antitrust Law.
(b) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under applicable Law and (B) obtaining approval for listing the Surviving Pubco Class A Common Stock issued pursuant to this Agreement on Nasdaq.
(c) Each Party shall, in connection with the Agreement and the transactions contemplated hereby, to the extent permitted by applicable Law: (i) promptly inform notify the Company of any communication between Acquiror, on the one handother Parties of, and any Governmental Authorityif in writing, on furnish the other handParties with copies of (or, and in the Company shall promptly inform Acquiror case of any communication between either Companyoral communications, on the one hand, and any Governmental Authority, on advise the other hand, in either case, regarding parties hereto of) any of the Transactions material substantive communications from or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactionsor NASDAQ, except with the prior written consent of the other Parties. The Company will pay all filing fees (ii) cooperate in connection with the HSR Act when due any proposed substantive written or oral communication with any Governmental Authority and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of permit the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity Parties to review and discuss in advance, and consider in good faith the views view of the other Parties in connection with, any proposed substantive written or oral communication to with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees NASDAQ, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions or NASDAQ unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental AuthorityAuthority or NASDAQ, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant Parties’ outside legal counsel with copies of all filings and communications between it and any such Governmental Authority or agreement shall govern and control solely to the extent of such conflict NASDAQ and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority or NASDAQ; provided, that materials required to be provided pursuant to this Section may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iiiB) to the extent required remove references to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceprivileged information.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under Applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 10, (y) obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers and (ii) using reasonable best efforts permits necessary or advisable to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with be obtained from any third party or deliver to, as applicable, any consents of any Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated hereby, and (z) obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ). Subject to Section 12.06, the costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including HSR Act filing fees and any filing fees in connection with any other Antitrust Law, and any fees associated with obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ, shall be paid by DSAC (if to be paid prior to the Transaction AgreementsClosing) or by Newco (if to be paid at or after the Closing). Each Party shall make or cause to be made (Aand not withdraw) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond transactions contemplated hereby as promptly as reasonably practicable after the date hereof. The Parties shall request early termination of the waiting period in any filings submitted under the HSR Act and shall use commercially reasonable efforts to supply as promptly as practicable to any requests by any the appropriate Governmental Authority for Authorities additional information and documentary material that may be requested pursuant to the HSR ActAct or any other Antitrust Law. Acquiror (The foregoing notwithstanding, nothing herein shall promptly inform require the Company to incur any liability or expenses (other than Company Transaction Expenses of the type set forth in clause (i) of the definition thereof, and any other de minimis costs and expenses) or DSAC to subject itself or its business to any imposition of any communication between Acquiror, limitation on the one handability to conduct its business or to own or exercise control of its assets or properties.)
(b) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under Applicable Law and obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ.
(c) Each Party shall, in connection with the Agreement and the transactions contemplated hereby, to the extent permitted by Applicable Law: (i) promptly notify the other Parties of, and if in writing, furnish the other Parties with copies of (or, in the case of oral communications, advise the other parties hereto of) any material substantive communications from or with any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of (ii) cooperate in connection with any proposed substantive written or oral communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of and permit the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity Parties to review and discuss in advance, and consider in good faith the views view of the other Parties in connection with, any proposed substantive written or oral communication to with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees Authority, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental Authority, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant or agreement shall govern Parties’ outside legal counsel with copies of all filings and control solely to the extent of communications between it and any such conflict Governmental Authority and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority; provided that materials required to be provided pursuant to this Section 9.01(c) may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iiiB) to the extent required remove references to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceprivileged information.
Appears in 1 contract
Samples: Merger Agreement (Duddell Street Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective effective, as promptly as reasonably practicable practicable, the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX VI and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to solicit proxies in connection with the SPAC Stockholder Approval, and (iii) using reasonable best efforts to obtain the PIPE Investments Financing on the terms and subject to the conditions set forth in the Subscription Agreements, (iv) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, SPAC) and (v) making all such filings with and obtaining all such approvals of Nasdaq to permit Class A Common Stock to be issued in accordance with this Agreement to be listed on Nasdaq). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The costs incurred in connection with obtaining such Consents, including the HSR Act filing fee, shall be borne by SPAC; provided, however, that each Party shall, subject to Section 8.6, bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business Days) following the Original Agreement Date date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between Acquirorany SPAC Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either Companythe Company or any of its Affiliates, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of SPAC and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or facilities, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of SPAC’s and the other Parties’ Company’s prior written consent. .
(b) During the Interim Period, Acquirorand unless prohibited by applicable Law, the SPAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany SPAC Party) or Acquiror SPAC (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany SPAC Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company the Company, SPAC, in advance. The Parties agree to consult and cooperate with each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or Acquiror, submitted by or on behalf of any Party in connection with judicial proceedings under or relating to the opportunity to attend and participate in such meeting HSR Act or discussionany Foreign Antitrust Law.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article V that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(cd) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoingthis Section 5.2, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent SPAC will (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall cause the Sponsor to) use its reasonable best efforts to obtain approval from such stockholders prior to cause the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval satisfaction of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as condition set forth in Section 8.026.3(c), which may include, during the Interim Period and subject to applicable Law, using commercially reasonable efforts to obtain (i) from Persons who have not previously entered into a Subscription Agreement on the date hereof, Subscription Agreements (ii) from all Pre-Closing SPAC Stockholders who have not previously entered into a Non-Redemption Agreement on the date hereof, Non-Redemption Agreements, and (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained a partial cancellation or reduction in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceSPAC Expenses.
Appears in 1 contract
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, the Purchaser Parties, the Company and Blocker Corp shall each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 7). The Purchaser Parties, the Company and (ii) using Blocker Corp shall each use reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting consents of all Governmental Entities (including the generality expiration or termination of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, HSR waiting period (and any consents of any Governmental Authorities or other Persons extensions thereof)) necessary to consummate the Transactions and the transactions contemplated by this Agreement. All HSR Act filing fees and any filing fees in connection with any applicable foreign antitrust or competition laws shall be borne by Purchaser and Purchaser shall reimburse the Transaction AgreementsRepresentative or its applicable Affiliates at Closing for all HSR Act filing fees and any filing fees in connection with any applicable foreign antitrust or competition laws borne by the Group Companies, Blocker Corp, the Representative or their Affiliates prior to Closing. Each Party party hereto shall (A) have made or shall make all required filings an appropriate filing, if necessary, pursuant to the HSR Act and any applicable foreign antitrust or competition laws with respect to the Transactions transactions contemplated by this Agreement promptly after the date of this Agreement (and in any event event, within 10 ten (10) Business DaysDays of the date of this Agreement in connection with any filings required pursuant to the HSR Act) following the Original Agreement Date (and (B) respond such filing shall request “early termination” of any applicable waiting periods), and shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, Act (a “Second Request”) and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions foreign antitrust or any Transaction Agreementcompetition laws. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to Group Companies, the Transactions under the HSR Act, Purchasers and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or any foreign antitrust or competition laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay parties hereto, and (ii) each Purchaser Party agrees to promptly take all filing fees in connection with actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to expeditiously consummate the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, provided, however, that any such actions and the term “reasonable best efforts”, for purposes of this Section 6.4, shall exclude, and nothing in this Section 8.01 or Agreement shall require any other provision of this Agreement obligates any Purchaser Party or any of its Affiliates Group Company to agree to undertake, (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree or agreeing to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of either Purchaser or its Affiliates, (B) terminating, amending or assigning existing relationships or contractual rights or obligations or (C) amending, assigning or terminating existing licenses or other agreements or entering into such Party new licenses or other agreements if taking any such action set forth in any of clauses (A), (B) or (C) would reasonably be expected to be adverse in any material respect to the business, financial condition or results of operations of the Group Companies, taken as a whole, or the Guarantor and its subsidiaries, taken as a whole.
(b) In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the parties hereto agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, if an Order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such Order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the transactions contemplated hereby.
(c) Each party hereto shall promptly notify the other parties hereto of any substantive communication it or its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and, to the extent permitted by law, permit the other parties hereto to review in advance any proposed substantive communication by it to any Governmental Entity. No party hereto shall agree to participate in any substantive meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other parties hereto in advance or is otherwise required by law and, to the extent permitted by such Governmental Entity, gives the other parties hereto the opportunity to attend and participate at such meeting. Each party hereto will provide the other parties hereto with copies of all correspondence, filings or communications between it or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorrepresentatives, on the one hand, and the Companyany Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement. The parties hereto may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.4(c) as “outside counsel only.” Such materials and the information contained therein shall give be given only to outside counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company)recipient and will not be disclosed by such outside counsel to employees, a reasonable opportunity officers, or directors of the recipient without the advance written consent of the party providing such materials. In addition, subject to review Applicable Law, the parties hereto shall consult and cooperate with each other in advanceadvance in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and consider in good faith the views of the other in connection with, any proposed written communication proposals made or submitted to any Governmental Authority Entity regarding the transactions contemplated by this Agreement by or on behalf of any party hereto.
(d) No Purchaser Party shall, and each Purchaser Party shall cause its Affiliates and ultimate parent entities not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into of a definitive agreement relating to the Transactions to, or the Transaction Agreements. Each consummation of such acquisition, merger or consolidation would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period (and any extensions thereof); (ii) materially increase the risk of any Governmental Entity seeking or entering an Order prohibiting the consummation of the Parties agrees transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to participate in remove any substantive meeting such Order on appeal or discussionotherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated by this Agreement.
(e) The Company shall, either in person and shall cause the Group Companies to, use commercially reasonable efforts to obtain any consents, waivers or by telephone, with approvals that are required under any Governmental Authority Contracts set forth on Schedule 6.4(e) in connection with the Transactions unless it consults with, in the case of Acquiror this Agreement and the Company, in advance and, to consummation of the extent not prohibited transactions contemplated by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights none of the CompanyGroup Companies, set forth in Blocker Corp, the immediately preceding sentenceSellers, control the negotiationRepresentative, defense and settlement Purchaser Parties or any of their respective Affiliates will be required to (i) expend any money, including payment of any consent or other similar fee, “profit sharing” or other similar payment, (ii) commence any litigation or arbitration proceeding or (iii) grant any accommodation (financial or otherwise), including agreeing to any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract, or the provision of additional security (including a guaranty), in each case, in connection with the obtaining of any consent, waiver or approval of any Person under any such Transaction Litigation; provided, however, Contract. Purchaser Parties acknowledge and agree that in no event shall Acquiror settle any failure to obtain any such consents, waivers or compromise any Transaction Litigation without the prior written consent of the Company (not approvals be deemed to be unreasonably withhelda breach or deemed breach of any representation, conditioned warranty or delayed). Without limiting the generality covenant of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”this Agreement, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as no condition set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit Article 7 shall be funded by deemed unsatisfied as a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceresult thereof.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof the transactions contemplated by this Agreement, including (i) preparing and filing with a Governmental Entity as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity, including pursuant to lending, consumer credit and insurer license requirements, in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) (and Parent shall be responsible for all filing fees incident thereto) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event transactions contemplated hereby within 10 Business Days) following Days of the Original Agreement Date and date of this Agreement, (B) respond make all filings that are required to be made in order to consummate the transactions contemplated hereby pursuant to relevant Foreign Investment Clearances, other Regulatory Laws or other applicable Laws with respect to the transactions contemplated hereby, as reasonably promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to practicable, but in no event later than 20 business days after the HSR Act. Acquiror shall promptly inform the Company date of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, this Agreement (unless Parent and the Company shall promptly inform Acquiror of any communication between either Company, on the one handagree to a later date), and (C) not extend any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions period under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees party hereto (which shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror Parent and the Company determine shall supply, and shall cause their respective Affiliates to supply, as reasonably promptly as practicable, any additional information or documentation that may be requested pursuant to or in good faith that it is probable that connection with the Transactions will not be consummated HSR Act relevant Foreign Investment Clearances, or any other Regulatory Law (including, with respect to Parent and its Affiliates, (x) providing financial reports, certificates, legal opinions or other information, (y) making Representatives, members of senior management, control persons and any other Person requested pursuant to or in connection with the HSR Act, Foreign Investment Clearances, or any other Regulatory Law (including the Persons set forth on or before March 12, 2023 (Section 6.03(a) of the “Acquiror Termination Date”Parent Disclosure Letter), then in each case, with appropriate seniority and expertise, available to participate in discussions or hearings and (iz) Acquiror shall call a special meeting providing personal information, including fingerprints, personal financial statements and securities holdings, of its stockholders members of senior management, control persons and any other Person requested pursuant to be held or in connection with the HSR Act, Foreign Investment Clearances, or any other Regulatory Law (including the Persons set forth on Section 6.03(a) of the Parent Disclosure Letter)), and shall use its reasonable best efforts to obtain approval take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act, Foreign Investment Clearances, and any other Regulatory Law as soon as possible (including complying with any “second request” for information or similar request from such stockholders prior a Governmental Entity pursuant to other Foreign Investment Laws or Regulatory Laws). Prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadlineClosing, the Company may submit an initial notification to DCSA of the transaction pursuant to the current National Industrial Security Program Operating Manual Rule, 32 C.F.R. Part 117 (the “Extension DateNISPOM Rule”). Following the Closing, Parent shall, and such proposalshall cause the Surviving Company to, use reasonable best efforts to submit any changed condition notification to DCSA in accordance with the “Extension Proposal”)NISPOM Rule.
(b) In connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act any other Regulatory Laws or any other applicable Laws, (ii) Acquiror each of Parent and the Company shall (i) cooperate in all respects with the preparationeach other in connection with any communication, filing or submission and mailing in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel promptly informed of proxy materials to be sent to Acquiror’s stockholders seeking approval any communication received by such party from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent required permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to obtain approval of the Extension Proposal attend and to cause sufficient funds to be retained participate in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and in documents submitted therewith) intended to be given by it to the event FTC, the Extension Proposal is duly approved by DOJ or any other Governmental Entity; provided that materials may be redacted to remove references concerning the affirmative vote valuation of the holders businesses of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror Company and the Company determine in good faith that it is probable that Subsidiaries. Parent and the Transactions Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be consummated disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.03(a) and 6.03(c), Parent shall take any and all steps not prohibited by Law to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Extension End Date, Acquiror including defending (with sufficient time for resolution in advance of the End Date) through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the Closing to occur as soon as possible (and in any event no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license or disposition of such businesses, product lines or assets of Parent, the Company and their respective Subsidiaries and (y) otherwise taking or committing to take actions that after the Closing would limit Parent’s and/or its Subsidiaries’ (including the Company’s and the Company shall cooperate in good faith Subsidiaries’) freedom of action with respect to, or its or their ability to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions operate and/or retain, one or more of the deadline applicable to businesses, product lines or assets of Parent, the Company and/or their respective Subsidiaries; provided, however, that any action contemplated by clauses (x) and (y) is conditioned upon the consummation of the transactions contemplated by this Agreement. The foregoing agreement in this section is made solely to facilitate the Closing and does not constitute a business combination representation or admission that the transactions contemplated hereby, if consummated without any modification, would violate any Regulatory Law or that agreeing to any divestitures, hold separate conditions or other restrictions permitted herein or suggested by any Person or authority acting under any Regulatory Law would not be harmful to the parties.
(d) The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in accordance or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the foregoing sentencetransactions contemplated by this Agreement to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(d) shall not limit or otherwise affect the remedies available hereunder to Parent or the Company.
Appears in 1 contract
Samples: Merger Agreement (KAMAN Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Plum, Merger Sub and the Parties Company shall, and the Company shall cause its Subsidiaries to: (a) use their respective reasonable best efforts to assemble, prepare and file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as reasonably practicable all governmental and regulatory consents required to be obtained in connection with the Transactions, (b) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (Transactions, including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality all material approvals of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities that any of Plum, the Company, or other Persons necessary their respective Affiliates are required to obtain in order to consummate the Transactions Transactions; provided that in no event shall a Party be obligated to bear any material expense, pay any material fee or grant any material concession in connection with obtaining any such approvals; provided, however, that (A) each of Plum and the transactions contemplated by Company shall be responsible for fifty percent (50%) of the Transaction AgreementsHSR Act filing fee and any filing required under any Foreign Antitrust Laws; and (B) each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such approvals, and (c) take such other action as may reasonably be necessary or as any other Party may reasonably request to satisfy the conditions of the other Parties set forth in Article X or otherwise to comply with this Agreement. Each Party shall (Ai) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions as promptly (and in any event within 10 Business Days) as practicable following the Original date of this Agreement, (ii) make any appropriate filings or take, or cause to be taken, any required actions pursuant to any Foreign Antitrust Laws with respect to the Transactions promptly following the date of this Agreement Date and (Biii) respond provide a reasonable response as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActAct or under any Foreign Antitrust Laws. Acquiror The Parties shall promptly inform the Company other of any substantive communication between Acquiror, on the one hand, itself and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Authority regarding any of the Transactions or any Transaction transactions contemplated by this Agreement. Without limiting the foregoing, (xa) the Parties agree to request early termination of all the applicable waiting periods applicable to the Transactions period under the HSR Act, and (yb) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or under any applicable Foreign Antitrust Laws or enter into any agreement with any Governmental Authority not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 9.02 obligates any Party or any of its Affiliates to agree to (i) sell, license license, or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective its Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign, or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except (i) as expressly contemplated by this Agreement or any Transaction Document, (ii) as required by applicable Law, (iii) as set forth in the Company Disclosure Schedules or the Plum Disclosure Schedules, as relevant, or (iv) with each of the such other Parties’ prior written consent. During consent (such consent not to be unreasonably withheld, conditioned or delayed).
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Acquiror, on the one hand, and the Company, on the other hand, Parties shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), other Parties a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person person, videoconference or by telephone, with any Governmental Authority in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Companyother Parties, in advance and, to the extent not prohibited by such Governmental Authority, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Parties the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject any materials shared may be redacted before being provided to and without limiting the covenants and agreements, and other Parties (i) to remove references concerning the rights valuation of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror as necessary to comply with contractual arrangements and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval avoid disclosure of the Extension Proposal in a manner that is expected other competitively sensitive information or to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on address reasonable privilege or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceconfidentiality concerns.
Appears in 1 contract
Samples: Business Combination Agreement (Plum Acquisition Corp. I)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective effective, as promptly as reasonably practicable practicable, the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain PIPE Investments solicit proxies in connection with the Redwoods Stockholder Approval, and (iii) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, Redwoods)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The costs incurred in connection with obtaining such Consents, including the HSR Act filing fee, shall be borne 50% by the Company and 50% by Redwoods; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business DaysDays following the first filing of the Registration Statement/Proxy Statement with the SEC) following the Original Agreement Date date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Redwoods shall promptly inform the Company of any communication between Acquirorany Redwoods Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror Redwoods of any communication between either Companythe Company or any of its Affiliates, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Redwoods and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or facilities, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of Xxxxxxxx’s and the other Parties’ Company’s prior written consent. .
(b) During the Interim Period, Acquirorand unless prohibited by applicable Law, the Redwoods Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Redwoods Party) or Acquiror Redwoods (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany Redwoods Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, the opportunity to attend and participate Redwoods in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Redwoods Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX Article 6 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04delivery of such Ancillary Document). Without limiting the generality of Notwithstanding the foregoing, each of the Parties Party shall use reasonable best efforts to obtainobtain consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents.
(b) Each Party shall (i) make, file with or deliver tocause to be made, an appropriate filing or take, or cause to be taken, any required actions, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 ten (10) Business Days) following after the Original Agreement Date date of this Agreement, (ii) request for early termination of the waiting period thereunder, and (Biii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror All filing fees in connection with the HSR Act shall be Company Expenses. Each Party shall promptly inform the Company other Parties of any communication between Acquiror, on the one hand, such Party and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Entity regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of 7GC and the other PartiesCompany. The Company will pay 7GC agrees to take all filing fees actions that are required by any Governmental Entity in connection with the filing pursuant to the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to expeditiously consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates including to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall , (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements, provided that any such action: (x) is conditioned upon the consummation of the transactions contemplated by this Agreement and (y) does not require 7GC to agree to take, any of the measures in the foregoing sentence with respect action if such action would have, or would be reasonably expected to any other Party or any of its Affiliateshave, except with each of the other Parties’ prior written consent. a Company Material Adverse Effect.
(c) During the Interim Pre-Closing Period, Acquirorthe 7GC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany 7GC Party) or Acquiror 7GC and its counsel (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction Agreementsany Ancillary Document. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and any 7GC Party, the Company, or, in the case of the Company, 7GC, in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and any 7GC Party, the Company, or, in the case of either Company or Acquirorthe Company, 7GC, the opportunity to attend and participate in such meeting or discussion.
(bd) In furtherance of, and without limiting the Parties’ obligations pursuant to, Section 5.2(a), the Company shall use commercially reasonable efforts to obtain, prior to the Closing, written consents, in form and substance reasonably acceptable to 7GC, from each of the counterparties to the agreements set forth on Section 5.2(d) of the Company Schedules; provided, that nothing herein shall require a Party or any of its respective Affiliates to expend money, commence any Proceeding or offer or grant any accommodation (financial or otherwise) to any third party. All costs incurred in connection with obtaining such consents shall be Company Expenses.
(e) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 Section 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. During the period from the date hereof to the Closing Date:
(a) Subject to the terms and conditions hereinherein provided, each of Seller, the Parties shall Company, ADSC, Buyer and HPS agrees to use their respective all reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions (including transactions contemplated by this Agreement. Each of Seller, the Company, Buyer and HPS agrees to the following: (i) cooperation in the satisfaction preparation and filing of any filings that may be required under the closing conditions set forth in Article IX HSR Act and Other Antitrust Laws and any amendments thereto, (ii) the compliance with all requirements under the HSR Act and Other Antitrust Laws applicable to the transactions contemplated hereby, (iii) using commercially reasonable best efforts in contesting any legal proceeding opposed to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of Acquisition and (iv) the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents execution of any Governmental Authorities or other Persons additional instruments necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall hereby.
(Ab) make all required filings ADSC and HPS each agree to make, or cause to be made, an appropriate filing of a notification and report form pursuant to the HSR Act with respect to the Transactions Acquisition within five (5) Business Days after the date of this Agreement (which filing shall request early termination of the waiting period under the HSR Act) and to supply promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror ADSC and HPS each agree to make, or cause to be made, within five (5) Business Days after the date of this Agreement, any required filing or report with the appropriate Governmental Entity under any applicable Other Antitrust Laws and to supply promptly any additional information and documentary material that may be requested pursuant to any applicable Other Antitrust Laws. Seller, the Company, ADSC, Buyer and HPS agree that Seller shall promptly inform pay and be responsible for the Company full amount of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees incurred in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary filings made in this Agreementaccordance with, nothing in or pursuant to, this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company4.4(b), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on Each Party will give prompt written notice to the other hand, shall each notify the other in writing promptly after learning Party of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, development causing any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case breach of Acquiror or any of its Representatives (own representations and warranties in their capacity ARTICLE 2 or ARTICLE 3, as a representative of Acquiror) or, in the case of the Company, or applicable. No disclosure by any respective Representatives of the Company (in their capacity as a representative of the CompanyParty pursuant to this Section 4.4(c). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal deemed to amend or supplement the Acquiror Organizational Documents Disclosure Schedule or to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30prevent or cure any misrepresentation, 2023 (such proposed extended deadlinebreach of warranty, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing or breach of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencecovenant.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Heartland Payment Systems Inc)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) including, without limitation, using its reasonable best efforts to provide, obtain PIPE Investments and maintain all third party or other notices, permits, consents, approvals, authorizations, qualifications and orders of, and the expiration or termination of waiting periods by, Governmental Entities and parties to Contracts with the Company and the other Group Companies as contemplated by set forth in Section 8.04)5.5 that are reasonably required in connection with the consummation of the Transactions and to fulfill the conditions to the Transactions. If, at any 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 each Party shall use their reasonable best efforts to take all such action. Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to (i) obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquirornecessary, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions proper or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not advisable to consummate the Transactions, except and (ii) oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Transactions, and defend, or cause to be defended, any Proceedings challenging the Arrangement or this Agreement or the Transactions (provided that no Party shall consent to the entry of any judgment or settlement with respect to such Proceeding without the prior written consent approval of the other Parties, not to be unreasonably withheld, conditioned or delayed). The Company will pay all and SPAC shall each bear 50% of the costs incurred in connection with obtaining such Consents and any filing fees or other costs payable to a Governmental Entity in connection the preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the HSR Act when due preparation, filing or mailing of the Registration Statement / Proxy Statement (excluding legal fees), including, subject to Section 11.6, its own out-of-pocket costs and expenses in connection with the preparation of any such fees Consents. Each Party shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything promptly inform the other Parties in writing of (i) with respect to the contrary in this AgreementCompany, nothing in this Section 8.01 any Company Material Adverse Effect that occurs after the date hereof, or any change, event, occurrence, effect, state of facts or circumstance that, individually or in the aggregate with such other provision changes, events, occurrence, effects, state of facts, circumstances, would reasonably be expected to lead to a Company Material Adverse Effect; (ii) any material communications it has with any Governmental Entity regarding any of the Transactions; (iii) any notice or other communication from any Person alleging that a consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is or may be required in connection with the Transactions; and (iv) any Proceeding commenced or threatened against, relating to or involving or otherwise affecting this Agreement or the Transactions.
(b) [Intentionally omitted].
(c) From and after the date of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets until the earlier of the Company Effective Time or any termination of their respective Subsidiaries or any entity or asset of such Party or any of this Agreement in accordance with its Affiliates or any other Person or (ii) terminateterms, amend or assign any existing relationships SPAC and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, AcquirorAcquisition Entities, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorSPAC or any Acquisition Entity) or Acquiror counsel for SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity specifically relating to the Transactions or the Transaction AgreementsTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone or otherwise with any Governmental Authority in connection with the Entity specifically relating to Transactions unless it consults with, in the case of Acquiror and SPAC or any Acquisition Entity, the Company, or, in the case of the Company, SPAC in advance and, to the extent not prohibited by such Governmental AuthorityEntity or by Law, gives, in the case of Acquiror and SPAC or any Acquisition Entity, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion. PubCo will cause the proxy statement to be mailed to SPAC Stockholders as promptly as practicable after the Registration Statement / Proxy Statement is declared effective under the Securities Act.
(bd) To the extent that any information or documentation to be provided by one Party to another Party pursuant to this Section 8.2 is, in the reasonable view of the providing Party, competitively sensitive, such information or documentation may be provided only to external counsel of the other Party on an “external counsel only” basis, and such receiving Party shall not request or otherwise received such information from its external counsel.
(e) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 8.2 conflicts with any other covenant or agreement in this Agreement Article VIII that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(cf) During Without limiting the Interim PeriodParties’ rights and obligations under Section 3.1(a), AcquirorSection 3.1(e) and Section 3.1(f), from and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, SPAC and the Acquisition Entities, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings Proceedings (including derivative claimsclaims and Arrangement Dissent Rights) relating to this Agreement, any Transaction Agreements Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, any Acquisition Entity or any of its their respective Representatives (in their capacity as a representative of AcquirorSPAC or any Acquisition Entity) or, in the case of the Company, any Group Company or any of their respective Representatives of the Company (in their capacity as a representative of the a Group Company). Acquiror Subject and in addition to Section 3.1(c)(ii) with respect to Arrangement Dissent Rights, SPAC, the Acquisition Entities and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle (v) refrain from settling or compromise compromising any Transaction Litigation without the prior written consent of SPAC or the Company Acquisition Entities, on the one hand, or the Company, on the other hand, as applicable (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinhereof, each of the Parties shall cooperate and use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) and to cause the satisfaction of conditions to each other’s obligation to close the closing conditions Transactions as set forth in Article IX 8 to be satisfied, including all actions and all things necessary for it (i) to comply promptly with all legal requirements which may be imposed on it with respect to this Agreement and the Transactions (which actions shall include furnishing all information required by applicable Law in connection with approvals of or filings with any Governmental Entity); (ii) using to satisfy the conditions precedent to the obligations of each such party hereto; and (iii) to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Entity required to be obtained or made by the Parties in connection with the acquisition of the Purchased Assets or the taking of any action contemplated by this Agreement. The Parties shall cooperate with each other to the extent reasonable in connection with the foregoing.
(b) In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to file applications with any applicable Governmental Entity whose waiver, consent, authorization or approval is required in connection with the consummation of the Transactions as promptly as practicable following the date hereof and in any event no later than ten (10) Business Days following the date hereof. The Parties shall cooperate and use their reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting any waiver, consent, authorization or approval required for the generality Closing, to respond to any requests for information from a Governmental Entity, and to contest and resist any Litigation and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the foregoingTransactions. To the extent permitted by applicable Law, each of the Parties shall use reasonable best efforts provide the other the opportunity to obtainmake copies of all material correspondence, file with filings or deliver to, as applicable, any consents of any Governmental Authorities communications (or other Persons necessary to consummate memoranda setting forth the Transactions and the transactions contemplated by the Transaction Agreements. Each substance thereof) between such Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiroror its representatives, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions with respect to this Agreement or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due Parties shall notify and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any keep each other provision of this Agreement obligates any Party or any of its Affiliates to agree advised as to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written material communication to from any Governmental Authority relating to Entity regarding the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or any Litigation pending and known to such Party or, to its knowledge, threatened, which challenges the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyTransactions.
(c) During Prior to the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelyClosing, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of Seller shall use its Representatives best efforts to obtain (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other Buyer in connection with the defenseobtaining) all waivers, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)consents, (iii) consider in good faith the other’s advice with respect to any such Transaction LitigationPermits, authorizations, approvals of, and (iv) reasonably cooperate with each other. Notwithstanding exemptions by, any third party necessary for the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights consummation of the Company, set forth in Transactions or the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent assignment of the Company (not Assumed Contracts to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, Buyer in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)accordance with Section 7.11.
(d) If Acquiror and All documents required to be filed by any of the Company determine Parties with any Governmental Entity in good faith that it is probable that connection with this Agreement or the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate comply in all material respects with the preparation, filing and mailing provisions of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Asset Purchase Agreement (DealerTrack Holdings, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective effective, as promptly as reasonably practicable practicable, the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain PIPE Investments solicit proxies in connection with the Priveterra Stockholder Approval, and (iii) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, Priveterra)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The costs incurred in connection with obtaining such Consents, including the HSR Act filing fee, shall be borne 50% by the Company and 50% by Priveterra; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business DaysDays following the first filing of the Registration Statement/Proxy Statement with the SEC) following the Original Agreement Date date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Priveterra shall promptly inform the Company of any communication between Acquirorany Priveterra Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror Priveterra of any communication between either Companythe Company or any of its Affiliates, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Priveterra and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or facilities, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of Xxxxxxxxxx’s and the other Parties’ Company’s prior written consent. .
(b) During the Interim Period, Acquirorand unless prohibited by applicable Law, the Priveterra Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Priveterra Party) or Acquiror Priveterra (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany Priveterra Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, the opportunity to attend and participate Priveterra in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Strathspey Crown Holdings Group, LLC)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and IX).
(iib) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (Ai) promptly make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event shall each file the Notification and Report Form under the HSR Act within 10 ten (10) Business Days) following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any material communication between Acquirorany Acquiror Party, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any material communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (xa) the Parties agree to request early termination of all the applicable waiting periods applicable to the Transactions period under the HSR Act, and (yb) each Party and its their respective Affiliates shall not agree to pull and refile under the HSR Act, or agree to extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction ExpensesParty. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the any Company or any of their respective Subsidiaries Group Member or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships relationship and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of Acquiror’s and the other Parties’ Company’s prior written consent. During the Interim Period, Acquirorthe Acquiror Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Acquiror Party) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person person, by telephone or by telephone, video with any Governmental Authority in connection with the Transactions unless it consults with, in the case of any Acquiror and Party, the Company, or, in the case of the Company, Acquiror, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of any Acquiror and Party, the Company, or, in the case of either Company or the Company, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Acquiror, Merger Subs, any Company Group Member be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the any Company or its Subsidiaries Group Member is a partyparty or otherwise in connection with the consummation of the Transactions.
(cd) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of its their respective Representatives (in their capacity as a representative of Acquiroran Acquiror Party) or, in the case of the Company, or the Company, any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Companyany Company Group Member). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting foregoing the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, Company shall control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror Acquiror, on the one hand, or the Company, on the other hand, settle or compromise any Transaction Litigation without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Power & Digital Infrastructure Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04delivery of such Ancillary Document). Without limiting the generality of Notwithstanding the foregoing, each of the Parties Party shall use reasonable best efforts to obtainobtain consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents.
(b) Each Party shall (i) make, file with or deliver tocause to be made, an appropriate filing or take, or cause to be taken, any required actions, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 ten (10) Business Days) following after the Original Agreement Date date of this Agreement, (ii) request early termination of the waiting period thereunder and (Biii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror All filing fees in connection with the HSR Act shall be Company Expenses. Each Party shall promptly inform the Company other Parties of any material communication between Acquiror, on the one hand, such Party and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Entity regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of STPK and the other PartiesCompany. The Company will pay STPK agrees to take all filing fees actions that are required by any Governmental Entity in connection with the filing pursuant to the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to expeditiously consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates including to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Party, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall , (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements, provided that any such action: (x) is conditioned upon the consummation of the transactions contemplated by this Agreement and (y) does not require STPK to agree to take, any action if such action would have, or would be reasonably expected to have, a Company Material Adverse Effect. Nothing in this Section 5.2 obligates any Affiliate of STPK (other than any Subsidiary of STPK) to agree to (1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of such Affiliate, (2) terminate, amend or assign existing relationships and contractual rights or obligations, (3) amend, assign or terminate existing licenses or other agreements, or (4) enter into new licenses or other agreements.
(c) From and after the date of this Agreement until the earlier of the measures Closing or termination of this Agreement in accordance with its terms, the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other STPK Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany STPK Party) or Acquiror STPK and its counsel (in the case of the Company), a reasonable opportunity to review in advanceadvance (subject to appropriate redactions for confidentiality and attorney-client privilege concerns), and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction Agreementsany Ancillary Document. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany STPK Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, STPK, in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives, in the case of any STPK Party, the Company, or, in the case of the Company, STPK, the opportunity to attend and participate in such meeting or discussiondiscussion (which, at the request of STPK, will be limited to outside antitrust counsel only).
(bd) In furtherance of, and without limiting the Parties’ obligations pursuant to, Section 5.2(a), the Company shall use commercially reasonable efforts to obtain, prior to the Closing, written consents, in form and substance reasonably acceptable to STPK, from each of the counterparties to the agreements set forth on Section 5.2(d) of the Company Schedules; provided that nothing herein shall require a Party or any of its respective Affiliates to expend money, commence any Proceeding or offer or grant any accommodation (financial or otherwise) to any third party. All costs incurred in connection with obtaining such consents shall be Company Expenses.
(e) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Merger Agreement (Star Peak Energy Transition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and IX, (ii) using reasonable best efforts obtaining as soon as practicable all material Consents and approvals of third parties (including any Governmental Authority) that any of Acquiror, Blade or their respective Affiliates are required to obtain in order to consummate the Transactions, and (iii) the consummation of the Conversion and the consummation of the PIPE Investments as contemplated by Section 8.04Investment on the terms and subject to the conditions set forth in the Subscription Agreement). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each .
(b) Without limiting the generality of the foregoing, each Party shall (Ai) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company Blade of any material communication between Acquirorany Acquiror Party, on the one hand, and any Governmental Authority, on the other hand, and the Company Blade shall promptly inform Acquiror of any material communication between either CompanyBlade, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting .
(c) Each Party will (and, to the foregoingextent required, shall cause their respective controlled Affiliates to) (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActAct (to the extent early termination is made available by the relevant Governmental Authorities), and (yii) each Party reasonably cooperate in good faith with Governmental Authorities and its respective Affiliates shall not extend undertake promptly any waiting periodand all reasonable action required to complete lawfully the Transactions as soon as practicable (but in any event prior to the Termination Date) and any and all reasonable action necessary or advisable to avoid, review period prevent, eliminate or comparable period under remove the HSR Act actual or enter into threatened commencement of any agreement with Action in any forum by or on behalf of any Governmental Authority not or the issuance of any Governmental Order that would reasonably be expected to consummate delay, enjoin, prevent, restrain or otherwise prohibit the Transactions, except with the prior written consent consummation of the Merger or the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction ExpensesTransactions. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 shall obligate any of Acquiror or any other provision of this Agreement obligates any Party Blade, or any of its their respective Affiliates to to, and (other than with the prior written consent of each of Acquiror and Blade) no Party shall, agree to (ix) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company Blade or any of their respective its Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (iiy) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree .
(d) With respect to any each of the measures in above filings, and any other requests, inquiries, Actions or other proceedings by or from Governmental Authorities, Blade and Acquiror shall (and, to the foregoing sentence extent required, shall cause their respective controlled Affiliates to) (i) diligently and expeditiously defend and use reasonable best efforts to obtain any necessary or advisable clearance, approval, Consent, exemption, or authorization under Laws prescribed or enforceable by any Governmental Authority for the Transactions and to resolve any objections as may be asserted by any Governmental Authority with respect to the Transactions and (ii) reasonably cooperate with each other in the defense of such matters. To the extent not prohibited by Law, Blade shall promptly furnish to Acquiror, and Acquiror shall promptly furnish to Blade, copies of any other Party notices or written communications received by such party or any of its AffiliatesAffiliates from any third party or any Governmental Authority with respect to the Transactions, except with and each of Party shall permit counsel to the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable Parties an opportunity to review in advance, and each Party shall consider in good faith the views of the other such counsel in connection with, any proposed written communication communications by such Party and/or its Affiliates to any Governmental Authority relating to concerning the Transactions or the Transaction Agreements. Each Transactions; provided, that none of the Parties shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority without the written consent of the other Parties. To the extent not prohibited by Law, Blade agrees not to provide Acquiror and its counsel, and Acquiror agrees to provide Blade and its counsel, the opportunity, on reasonable advance notice, to participate in any substantive meeting meetings or discussiondiscussions, either in person or by telephone, with between such Party and/or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Authority Authority, on the other hand, concerning or in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionTransactions.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(ce) During the Interim Period, Acquiror, on the one hand, and the CompanyBlade, on the other hand, shall each notify the each other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, the Transactions, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of their respective Representatives (in their capacity as a representative of an Acquiror Party) or, in the case of Blade, Blade or its Subsidiaries or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, Blade or any respective Representatives of the Company (in their capacity as a representative of the Companyits Subsidiaries). Acquiror and the Company Blade shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its their own respective cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s others’ advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each otherother with respect to any such Transaction Litigation. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the CompanyBlade, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company Blade (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or Blade, any of its Subsidiaries or any of their respective its Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)consent.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Seller, Purchaser and the Parties Company shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (including date hereof the transactions contemplated by this Agreement, including: (i) preparing and filing with a Governmental Entity as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents, and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity, including pursuant to lending, consumer credit and insurer control requirements, in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) (and Purchaser shall be responsible for all filing fees incident thereto) and (ii) using reasonable best efforts subject to Section 6.02(e), as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event transactions contemplated hereby within 10 Business Days) following Days of the Original Agreement Date and date of this Agreement, (B) respond make appropriate and complete filings to obtain all consents, authorizations or approvals of state regulatory authorities or commissions governing consumer lending and insurance in the various states in which the Company or any Company Subsidiary operates that are required to be made in order to consummate the transactions contemplated hereby as reasonably promptly as reasonably practicable (the “State Regulatory Approvals”), (C) make all other filings that are required to any requests by any Governmental Authority for additional information and documentary material that may be requested made in order to consummate the transactions contemplated hereby pursuant to other Regulatory Laws or other applicable Laws with respect to the HSR Act. Acquiror shall transactions contemplated hereby as reasonably promptly inform the Company of any communication between Acquiror, on the one handas practicable, and (D) not extend any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions period under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with Seller, the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 Purchaser or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in as the case of Acquirormay be) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees which shall not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoingSeller, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror Purchaser and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12shall supply, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall cause their respective Affiliates to supply, as reasonably promptly as practicable, any additional information or documentation that may be requested pursuant to or in connection with the HSR Act, the State Regulatory Approvals, any other Regulatory Law or any other applicable Law (including, with respect to Purchaser and its Affiliates, (x) providing financial reports, certificates, legal opinions or other information, (y) making Representatives, members of senior management, control persons and any other Person requested pursuant to or in connection with the HSR Act, the State Regulatory Approvals, any other Regulatory Law or any other applicable Law, in each case, with appropriate seniority and expertise, available to participate in discussions or hearings and (z) providing personal information, including fingerprints, personal financial statements and securities holdings, of members of senior management and control persons (as determined by the applicable Governmental Entity) requested pursuant to or in connection with the HSR Act, the State Regulatory Approvals, any other Regulatory Law or any other applicable Law) and use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act, any other Regulatory Law and any State Regulatory Approvals as soon as possible (including complying with any “second request” for information or similar request from a Governmental Entity pursuant to any Regulatory Laws or State Regulatory Approvals).
(b) In connection with the actions referenced in Section 6.02(a) to obtain approval from such stockholders prior to all Governmental Approvals for the Acquiror Termination Date of a proposal to amend transactions contemplated by this Agreement under the Acquiror Organizational Documents to extend HSR Act, the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30State Regulatory Approvals, 2023 any other Regulatory Laws or any other applicable Laws (such proposed extended deadlinecollectively, the “Extension Date”, and such proposal, the “Extension ProposalRequired Approvals”), (ii) Acquiror Seller, Purchaser and the Company shall (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other parties and/or their counsel promptly informed of any communication received by such party from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the preparationFTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other person, give the other parties and/or their counsel the opportunity to attend and participate in such meetings and conferences; and (iv) permit the other parties and/or their counsel to review in advance any submission, filing or communication (and mailing of proxy materials documents submitted therewith) intended to be sent given by it to Acquiror’s stockholders seeking approval the FTC, the DOJ or any other Governmental Entity; provided that (A) materials may be redacted to remove references concerning the valuation of the Extension Proposal businesses of the Company and the Company Subsidiaries and (B) no party shall be required to disclose to the other party any of its or its Affiliates’ confidential or competitively sensitive information, or any personally identifiable information, financial information or non-public information of any natural person (it being understood, in the event that the restriction in clause (B) of this Section 6.02(b) is implicated, information may be shared on an outside-counsel basis in accordance with the same effortsimmediately following sentence). Seller, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror Purchaser and the Company determine in good faith that it is probable that may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the Transactions other under this Section 6.02(b) as “Antitrust Counsel Only Material” or “Regulatory Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust or regulatory counsel of the recipient and will not be consummated 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 (Seller, Purchaser or the Company, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.02(a) and 6.02(b), with respect to obtaining the Required Approvals, Purchaser shall, and shall cause its Affiliates to, take any and all steps not prohibited by Law to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Extension End Date, Acquiror including defending (with sufficient time for resolution in advance of the End Date) through litigation on the merits any claim asserted in any court with respect to transactions contemplated by this Agreement, by the FTC, the DOJ or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate each and every impediment under any Regulatory Law so as to enable the Closing to occur as soon as possible (and in any event, no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of (A) such businesses, product lines and assets of Purchaser, the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions each of their respective Affiliates and (B) all or any portion of the deadline applicable Shares, and (y) otherwise taking or committing to take actions that after the Closing would limit Purchaser’s, the Company’s and/or their respective Affiliates’ freedom of action with respect to, or their ability to operate and/or retain, one or more of the businesses, products lines or assets of Purchaser, the Company and/or their respective Affiliates (the actions contemplated by subclauses (x) and (y) of this clause (c), a “Divestiture Action”); provided, however, that (1) any Divestiture Action is conditioned upon the consummation of the transactions contemplated by this Agreement, (2) notwithstanding anything to the contrary herein or otherwise, in connection with any State Regulatory Approval only, neither Purchaser nor any of its Affiliates shall be obligated to take or refrain from taking or to agree to the Company or its Subsidiaries taking or refraining from taking any steps or action or to suffer to exist any condition, limitation, restriction or requirement that, individually or in the aggregate would or would reasonably be likely to result in a business combination Burdensome Condition and (3) notwithstanding anything to the contrary herein or otherwise, Purchaser shall not, and shall not permit its Affiliates to, take or agree to take any Divestiture Action to the extent related to any business, product line or asset of the Company or the Company Subsidiaries without the prior written consent of the Company. A “Burdensome Condition” means, in accordance connection with any State Regulatory Approval only, any condition, limitation or qualification imposed by a Governmental Entity on its grant of any consent, authorization, order, approval or exemption that a party seeks to obtain in connection with the foregoing sentencetransactions contemplated by this Agreement that, individually or together with all such conditions, limitations or qualifications, would or would reasonably be expected to have a material adverse effect on the business, results of operations or financial condition of Purchaser and its Subsidiaries (taken as whole) or the Sponsors (taken as a whole).For the avoidance of doubt (but subject to clause (3) of this Section 6.02(c)), in no event will Purchaser’s and its Affiliates’ obligations under this Section 6.02(c) be limited by any of the limitations on the obligations of the Company under Section 6.02(e).
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 20 Business Days) following the Original date of this Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company Parties of any communication between Acquirorany Acquiror Party, on the one hand, and any Governmental Authority, on the other hand, and the Company Parties shall promptly inform Acquiror Xxxxxxxx of any communication between either Companya Company Party, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expensesdue. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the a Company Party or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorthe Acquiror Parties, on the one hand, and the CompanyCompany Parties, on the other hand, shall give counsel for the Company (in the case of Acquirorany Acquiror Party) or Acquiror (in the case of the CompanyCompany Parties), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and Acquiror, the Company, or, in the case of a Company Party, Acquiror, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and Acquiror, the Company, or, in the case of either a Company or Party, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall the Acquiror Parties or the Company Parties be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the a Company or its Subsidiaries Party is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of its their respective Representatives (in their capacity as a representative of Acquiroran Acquiror Party) or, in the case of the Company, or any respective Representatives member of the Company Group or any of their respective Representatives (in their capacity as a representative of a member of the CompanyCompany Group). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction LitigationLitigation commenced against any of the Acquiror Parties or any of their respective Representatives (in their capacity as a representative of an Acquiror Party), and the Company shall, subject to and without limiting the covenants and agreements, and the rights of Acquiror, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation commenced against any member of the Company Group or any of their respective Representatives (in their capacity as a representative of a member of the Company Group); provided, however, that in no event shall Acquiror any Party settle or compromise any Transaction Litigation without the prior written consent of the Company other Parties hereto (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Merger Agreement (Forest Road Acquisition Corp. II)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.047). Without limiting the generality of the foregoing, each of Parent and the Parties Company shall use reasonable best efforts to obtain, file with or deliver toefforts, as applicabledetermined by the Company and/or the Representative, any to obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated Transactions. Costs incurred in connection with obtaining such consents shall be borne by the Transaction AgreementsParties in accordance with Section 10.5 except that all filing fees incurred in connection with the filing and compliance under the Competition Laws shall be borne by Parent. Each Party shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act Competition Laws with respect to the Transactions promptly (and in any event event, within 10 ten (10) Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActCompetition Laws. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either The Company, on the one hand, Parent and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act Competition Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay Parent agrees to take (and Parent’s “reasonable best efforts” shall expressly include the taking of) all filing fees actions that are necessary or advisable or as may be required by any Governmental Entity to expeditiously (and in connection with no event later than the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to Termination Date) consummate the contrary in this AgreementTransactions, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to including (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose of, (i) any entities entities, assets or assets facilities of any Group Company after the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person Closing or (ii) terminateany entity, amend facility or assign any assets of Parent or its Affiliates before or after the Closing, (B) terminating, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligations. No Party termination existing licenses or other agreements (other than terminations that would result in a breach of a license of such other agreement with a third party) and entering into such new licenses or other agreement; provided, that Parent shall agree not be obligated to take any of the measures action pursuant to this Section 6.4 that, individually or in the foregoing sentence aggregate with respect to any other Party or any of actions, would have a material adverse effect on Parent and its AffiliatesSubsidiaries, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), taken as a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionwhole.
(b) In the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the Transactions or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order lifted.
(c) Notwithstanding anything to the contrary in and for the Agreementavoidance of doubt, (i) if this Section 8.01 conflicts Parent and its external counsel, after good faith consultation with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or and its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one handexternal counsel, and the Companyafter considering, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelygood faith, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives views and comments of the Company (in their capacity as a representative of and its external counsel, shall have the Company). Acquiror principal responsibility for devising and implementing the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)antitrust approval strategy.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Stock Purchase Agreement (Church & Dwight Co Inc /De/)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Yucaipa, TopCo, Merger Sub and the Parties Company shall, and the Company shall cause its Subsidiaries to: (i) use their respective reasonable best efforts to assemble, prepare and file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as practicable all governmental and regulatory consents required to be obtained in connection with the Transactions, (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (Transactions, including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality all material approvals of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities that any of Yucaipa, the Company, or other Persons necessary their respective Affiliates are required to obtain in order to consummate the Transactions Transactions; provided that in no event shall TopCo, Yucaipa, Merger Sub, the Company or its Subsidiaries be obligated to bear any material expense, pay any material fee or grant any material concession in connection with obtaining any such approvals (other than any required filing fees in connection therewith); provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such approvals, and (iii) take such other action as may reasonably be necessary or as any other Party may reasonably request to satisfy the conditions of the other Parties set forth in Article X or otherwise to comply with this Agreement. The Parties shall promptly inform the other of any substantive communication between any itself, and any Governmental Authority regarding any of the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction this Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 9.02 obligates any Party or any of its Affiliates to agree to to, and the Company shall not for the purpose of satisfying any condition set forth in Article X without Yucaipa’s consent, (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective its Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the such other Parties’ prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Acquiror, on the one hand, and the Company, on the other hand, Parties shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), other Parties a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed material written communication to any Governmental Authority relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person person, videoconference, or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance andtransactions contemplated by this Agreement unless, to the extent not prohibited by such Governmental Authority, givesit consults with the other Parties, in advance. Notwithstanding the case of Acquiror and the Companyforegoing, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything any materials shared may be redacted before being provided to the contrary in the Agreement, other Parties (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to remove references concerning the extent valuation of such conflict and the Company (ii) in no event shall Acquiror as necessary to comply with contractual arrangements and (iii) as necessary to avoid disclosure of other competitively sensitive information or the Company be obligated to bear any expense address reasonable privilege or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconfidentiality concerns.
(c) During Without limiting the Interim Periodforegoing, Acquiror, Yucaipa and TopCo shall use reasonable best efforts to (i) consummate the transactions contemplated by the Subscription Agreements on the one handterms and conditions described therein, including maintaining in effect the Subscription Agreements; (ii) satisfy in all material respects on a timely basis all conditions and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating covenants applicable to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, them in the case Subscription Agreements and otherwise comply with their obligations thereunder; (iii) in the event that all conditions in the Subscription Agreements (other than conditions whose satisfaction is controlled by the Parties or their Affiliates and other than conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummate the transactions contemplated by the Subscription Agreements at the time contemplated hereby; (iv) confer with each other regarding timing of Acquiror the Schedule Closing Date (as defined in the Subscription Agreements); (v) deliver notices to counterparties to the Subscription Agreements at least five Business Days prior to the Closing to cause them to fund their obligations at least two Business Days prior to the date that the Closing is scheduled to occur hereunder; and (vi) enforce their rights under the Subscription Agreements in the event that all conditions in the Subscription Agreements (other than conditions whose satisfaction is controlled by the Parties or any of their Affiliates and other than conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause (A) each PIPE Investor to pay the subscription price set forth in its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, PIPE Subscription Agreement and (ivB) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject Sponsor to and without limiting pay the covenants and agreements, and the rights of the Company, subscription price set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoingSponsor Subscription Agreement, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheldeach case, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceterms.
Appears in 1 contract
Samples: Business Combination Agreement (Yucaipa Acquisition Corp)
Efforts to Consummate. (a) Subject Each of the Parties agrees to use its respective reasonable best efforts to take, or cause to be taken, all additional actions to consummate of the terms Transactions. In furtherance thereof, Tiptree and conditions hereinthe Company shall, and shall cause each of the Company’s Subsidiaries to, at the sole cost and expense of the Group Companies, use their reasonable best efforts to take, or cause to be taken, all actions necessary or appropriate, and each of the Parties shall assist and cooperate with the other parties, to obtain the Required Third Party Approvals and any and all other third party consents, permits and waivers necessary or appropriate for consummation of the Transactions. Each Party shall use their its respective reasonable best efforts to take, or cause to be taken, all actions to satisfy the conditions precedent to the Closing or any Funding.
(b) Each of the Investor, Tiptree and the Company shall cooperate and use their respective reasonable best efforts to obtain the consents, approvals, orders, acknowledgements, notices from or authorizations of Governmental Authorities set forth on Section 7.2(b) of the Company Disclosure Schedule (collectively, the “Required Governmental Approvals”), and all other consents, approvals and agreements of, and to dogive and make all notices and filings with, or cause to be done, all things reasonably any Governmental Authority necessary or advisable to consummate and make effective the Transactions, including, as promptly as reasonably practicable practicable, but in no event later than thirty (30) calendar days, following the Transactions (including (i) date of this Agreement, the satisfaction Investor filing, or causing to be filed, “Form A” Statements or similar change of control applications, with Governmental Authorities in each jurisdiction where required by applicable Law seeking approval of the closing conditions set forth in Article IX Investor’s acquisition of control of each of the Insurance Subsidiaries which results from the Transactions. Each of the Investor, Tiptree and (ii) using the Company shall reasonably cooperate and use their respective reasonable best efforts to obtain PIPE Investments supply to the relevant Governmental Authorities as contemplated promptly as practicable any additional information or documents that may be required by Section 8.04)any Law or required by such Governmental Authorities. Without limiting Each of the generality of Investor, Tiptree and the Company shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing, each of the Parties and shall use their reasonable best efforts to obtain(i) respond promptly to inquiries from the applicable Governmental Authorities in connection with such applications, file notices and filings, including providing any supplemental information that may be requested by such Governmental Authorities, (ii) to the extent reasonably practicable, permit the other parties to review in advance and consult on any material communication delivered to any Governmental Authority and in good faith consider any comments of the other parties thereon and (iii) provide to the other parties copies of any filings at the time they are filed with or deliver tothe applicable Governmental Authorities. Notwithstanding the foregoing, as applicableneither Tiptree nor the Investor nor any of their respective Affiliates shall be required to disclose to the other Party, and shall be entitled to redact, any consents privileged information, personally identifiable information or confidential competitive information. Each of the Investor, Tiptree and the Company shall cooperate and use their respective reasonable best efforts to take all actions that may be required by any Governmental Authorities or other Persons necessary Authority to consummate the Transactions and the transactions contemplated by this Agreement as soon as reasonably practicable, including the Transaction Agreements. Each Party prompt use of its reasonable best efforts to avoid the entry of, or to effect the dissolution of, any preliminary or temporary injunction or other order that would materially delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement; provided, that no Person shall be required to, nor shall they take, any action or agree to take any action that would result in the imposition of a Burdensome Condition.
(Ac) make all required filings pursuant to The Investor will promptly notify the Company upon becoming aware that a filing under the HSR Act becomes required to be made with respect to any Funding. Promptly after receipt of such notification, each of Investor and the Transactions promptly Company shall (and in cause their ultimate parent entities to) make any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to required filings under the HSR Act. Acquiror .
(d) Notwithstanding anything to the contrary set forth in this Agreement, neither the Investor nor any of its Affiliates shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other handbe obligated to, and the Company shall promptly inform Acquiror of any communication between either Companymay not, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with without the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything Investor, take or refrain from taking, or to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party agree that it or any of its Affiliates will take or refrain from taking, any action or suffer to agree exist any restriction, requirement, condition, limitation, understanding, agreement or order that, individually or in the aggregate, with any other actions, restrictions, requirements, conditions, limitations, understandings, agreements or orders, would or would reasonably be expected to result in any of the following (each, a “Burdensome Condition”): (i) a material adverse effect on the financial condition, assets, liabilities or results of operations of the Company, the Investor or their respective Affiliates, (ii) a requirement to sell, license license, assign, transfer, divest, hold separate or otherwise dispose of any material assets, business or portion of business of the Company, or any of its Affiliates, (iii) a requirement to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets of, or hold separate and agree to sellrestrict the operations of any business, license operations or otherwise dispose assets of, the Investor, any entities direct or assets indirect third-party investor in the Investor, or of any Affiliate of the Company Investor, (iv) a material and adverse impact on the aggregate net economic benefits reasonably expected to be derived by the Investor or any of their respective Subsidiaries its Affiliates in connection with the Transactions, or (v) a requirement that any entity or asset of such Party the Investor or any of its Affiliates or any other Person direct or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures indirect investor in the foregoing sentence with respect to any other Party Investor or any of its AffiliatesAffiliates provide any direct or indirect guarantee, except with each of the capital maintenance or other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) capital support or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication capital contribution or commitment to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Group Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof and in any event no later than the End Date the transactions contemplated by this Agreement, including (i) preparing as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly transactions contemplated hereby within ten (and in any event within 10 10) Business Days) Days following the Original Agreement Date and date of this Agreement, (B) respond make all other required filings pursuant to other Regulatory Laws with respect to the transactions contemplated hereby as reasonably promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Actpracticable, and (yC) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Partiesparties hereto. The Each of Parent and the Company will pay shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its reasonable best efforts to take all filing fees other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible and in any event no later than the End Date.
(b) Each of Parent and the Company shall, in connection with the actions referenced in Section 6.03(a) to obtain all Governmental Approvals under the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Regulatory Laws, (i) sellcooperate in all respects with each other in connection with any communication, license filing or otherwise dispose ofsubmission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed of any communication received by such party from, or hold separate and agree to sellgiven by such party to, license or otherwise dispose ofthe FTC, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates DOJ or any other Person U.S. or (ii) terminateother Governmental Entity and of any communication received or given in connection with any proceeding by a private party, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to in each case regarding any of the measures transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the foregoing sentence with respect to FTC, the DOJ or any other Party or any of its AffiliatesGovernmental Entity or, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, with any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or proceeding by telephonea private party, with any Governmental Authority in connection with the Transactions unless it consults withother person, in the case of Acquiror and the Company, in advance and, to the extent not prohibited permitted by the FTC, the DOJ or such other Governmental AuthorityEntity or other person, gives, in give the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other party and/or its counsel the opportunity to attend and participate in such meeting meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or discussioncommunication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.03(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(bc) Notwithstanding anything to the contrary set forth in the this Agreement, (i) if this Section 8.01 conflicts with in no event will the Company, any other covenant of the Company Subsidiaries, Parent or agreement in this Agreement Merger Sub be required to take or commit to take any actions that is intended would be reasonably likely to specifically address materially adversely impact or impose limitations on the ownership by Parent or any subject matter, then such other covenant of its Subsidiaries of all or agreement shall govern and control solely to a material portion of the extent of such conflict Company’s business or assets and (ii) in no event shall Acquiror will Parent or the Company Merger Sub be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract this Agreement to which the Company (or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one handto cause or direct their Affiliates to), and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction LitigationSubsidiaries will not, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company Parent, sell, divest, license or hold separate any capital stock or other equity or voting interests, assets (not to be unreasonably withheld, conditioned whether tangible or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”intangible), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30rights, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on products or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencebusinesses.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Xxxxxx Xxxxxxx, Parent, Seller, Buyer and the Parties Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.049). Without limiting Each of Xxxxxx Xxxxxxx, Parent, Seller, Buyer and the generality of the foregoing, each of the Parties Company shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by this Agreement. All filing and application fees required in connection with obtaining such consents from Governmental Entities shall be borne by Seller except that the Transaction AgreementsHSR Act filing fee shall be borne by Buyer. Each Party shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 fifteen (15) Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActCompany, Xxxxxx Xxxxxxx, Parent, Seller, Buyer and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay , and (ii) Buyer agrees to take all filing fees in connection with actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to expeditiously consummate the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in transactions contemplated by this Agreement; provided, nothing however, in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates no event shall Buyer be required to agree to any limitations or restrictions that would result in a Burdensome Condition, including (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of any Group Company after the Company Closing or any of their respective Subsidiaries or any entity entity, facility or asset of such Party Buyer or any of its Affiliates Affiliates, (B) terminating, amending or any other Person or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations and (C) amending, assigning or obligations. No Party shall agree terminating existing licenses or other agreements and entering into such new licenses or other agreements to the extent any of the measures actions set forth in clauses (A) through (C) above, individually or in the foregoing sentence aggregate, would result in a Burdensome Condition.
(b) In the event any Action or other proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such Action or other proceeding and, if an injunction or other order is issued in any such Action or other proceeding, to use reasonable best efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the transactions contemplated hereby.
(c) If any Party or Affiliate thereof receives a request for information or documentary material from any Governmental Entity with respect to any other Party this Agreement or any of its Affiliatesthe transactions contemplated hereby, except then such Party shall endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party (to the extent permitted by applicable Law), an appropriate response in compliance with such request.
(d) To the extent permitted by applicable Law, the Parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the consents, authorizations and approvals set forth on Section 9.2(d) and Section 9.3(d) of the Disclosure Schedules, including:
(i) reasonably cooperating with each other in connection with any filings with respect to the consents, authorizations and approvals set forth on Section 9.2(d) and Section 9.3(d) of the Disclosure Schedules;
(ii) furnishing to the counsel of the other Parties’ prior written party all reasonably requested information within its possession that is required in connection with any consent. During , authorization or approval set forth on Section 9.2(d) and Section 9.3(d) of the Interim PeriodDisclosure Schedules;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement;
(iv) not participating in any substantive meeting, Acquirordiscussion or conversation with any Governmental Entity in connection with proceedings under or relating to any consent, authorization or approval set forth on Section 9.2(d) and Section 9.3(d) of the one handDisclosure Schedules, and the Company, on unless it consults with the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review party in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited permitted by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other party the opportunity to attend and participate in such meeting or discussion.therein; and
(bv) Notwithstanding anything to the contrary reasonably consulting and cooperating with one another in the Agreementconnection with all analyses, (i) if this appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection. Other than as set forth in Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter7.4(a), then such other covenant or agreement Seller and Buyer may, but shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company not be obligated to, make any material payment or deliver anything of material value to bear any expense third party in order to obtain any consent, approval or pay any fee or grant any concession authorization (it being understood that all costs and expenses incurred in connection with obtaining any consents, authorizations or approvals pursuant to the terms of consents under any Contract to which set forth on Section 7.4(d) of the Company or its Subsidiaries is a partyDisclosure Schedules shall be borne equally by Buyer and Seller except as set forth on Section 7.4(d) of the Disclosure Schedules).
(ce) During the Interim Period, AcquirorEach of Xxxxxx Xxxxxxx and Seller, on behalf of itself and each of its Subsidiaries, effective as of the one handClosing, releases each Group Company from and the Companyagainst any and all past, on the other handexisting or future, shall each notify the other in writing promptly after learning claims, demands, obligations, liabilities, debts, obligation or commitments of any shareholder demands kind, whether known or unknown, suspected or unsuspected, at law or in equity, solely arising from or related to any act or omission by any Group Company prior to the Closing (“Claims”) other shareholder proceedings than Claims (including derivative claimsi) relating to that constitute Loss Sharing Claims or (ii) that arise under this Agreement, any Transaction Agreements Ancillary Agreement or any matters relating thereto Intercompany Agreement that survives the Closing in accordance with Section 7.12 hereof.
(collectivelyf) Xxxxxx Xxxxxxx, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, Parent, Seller and Buyer shall use all reasonable best efforts to negotiate and enter into the Ancillary Documents at or any respective Representatives of prior to the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate Closing in the defense, settlement and compromise of forms attached as exhibits hereto along with any such Transaction Litigation and reasonably cooperate with modifications agreed to between the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigationparties thereto; provided, however, that to the extent that Xxxxxx Xxxxxxx, the Company, Parent, Seller and Buyer do not agree to any modifications to the Ancillary Documents, the Ancillary Documents shall be entered into in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company forms attached as exhibits hereto.
(not to be unreasonably withheld, conditioned or delayed). g) Without limiting the generality obligations set forth in Section 7.4(a) above, Buyer shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or advisable to respond to any request by Seller for information in connection with obtaining any consent set forth on Section 9.2(d) or Section 9.3(d) of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal Disclosure Schedules in accordance with the same efforts, notice, following time periods: (i) within two (2) weeks of an initial request with respect to any consent and other cooperation standards applicable to the preparation, filing and mailing set forth on Section 9.2(d) or Section 9.3(d) of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, Disclosure Schedules and (ivii) and in the event the Extension Proposal is duly approved by the affirmative vote within five (5) calendar days of the holders of the requisite number of Acquiror Common Stock entitled a follow-up request with respect to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceconsent.
Appears in 1 contract
Efforts to Consummate. (a) Subject to Except for approvals or requirements under the terms HSR Act, the EU Merger Regulation and conditions hereinthe Specified Foreign Competition Laws, if applicable (which are the subject of Section 7.03(b)), each of the Parties shall cooperate, and unless a different or higher standard is expressly required by this Agreement, use their respective its commercially reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary under applicable Laws to consummate the Transactions and the other transactions contemplated by this Agreement and the other Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond Agreements as promptly as reasonably practicable after the date hereof, including (i) the preparation and filing of all forms, registrations and notices or drafts thereof as applicable required to any requests be filed to consummate the Transactions and the other transactions contemplated hereby and by any Governmental Authority for additional information and documentary material that may be requested pursuant the other Transaction Agreements, (ii) the satisfaction of the conditions to the HSR Act. Acquiror shall promptly inform Parties’ obligations to consummate such transactions, (iii) taking all reasonable actions necessary to obtain (and cooperation with each other in obtaining) any consent, authorization or approval of, or any exemption by, any other Person, and (iv) the Company execution and delivery of any communication between Acquiroradditional instruments necessary to consummate such transactions and to fully carry out the purposes of this Agreement and the other Transaction Agreements.
(b) Roadrunner (or its Affiliate, TCP-ASC), on the one hand, and any Governmental AuthorityCoyote, on the other hand, will each make or cause to be made all filings and submissions or drafts thereof as applicable required under the HSR Act, the EU Merger Regulation and the Company shall Specified Foreign Competition Laws, if applicable, as promptly inform Acquiror as practicable, and, in any event, no later than ten (10) Business Days in the case of the HSR Act and fifteen (15) Business Days in the case of the EU Merger Regulation and the Specified Foreign Competition Laws, if applicable, after the date hereof, and thereafter respond, as promptly as practicable, to any inquiries or information requests received from any Governmental Authority and make, as promptly as practicable, any other required submissions with respect to the transactions contemplated hereby under the HSR Act, the EU Merger Regulation and the Specified Foreign Competition Laws, if applicable, and otherwise use commercially reasonable efforts to cause the approval of the Transactions, and the expiration or termination of any communication between either Companyreview or the applicable waiting period under the HSR Act, the EU Merger Regulation and the Specified Foreign Competition Laws, if applicable, to occur as soon as practicable. In that regard, each of Roadrunner, on the one hand, and any Governmental AuthorityCoyote, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, shall (xi) the Parties agree to request early termination of all waiting periods applicable furnish to the Transactions other party any 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, the EU Merger Regulation and the Specified Foreign Competition Laws, if applicable, provided however, that such information does not include the HSR Act filings themselves, and information may be redacted as necessary to address legal privilege or confidentiality concerns and comply with applicable Laws; and (yii) each Party permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests. The Coyote Entities will not, except with the prior written consent of Roadrunner, but Roadrunner may, if in its respective Affiliates shall not good faith judgement it determines (after consulting in advance with Coyote and taking Coyote’s views into account), that the taking of such action would enhance the likelihood of obtaining any necessary approvals or clearances of Governmental Authorities (including under the HSR Act, the EU Merger Regulation and the Specified Foreign Competition Laws, if applicable) or similar clearance by the End Date, extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of transactions contemplated by this Agreement and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction ExpensesAgreements. Notwithstanding anything to the contrary in this Agreementcontained herein, nothing in this Section 8.01 or any other provision none of this Agreement obligates any Party or any of its Affiliates to agree to (i) sellCoyote, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company Sellers or any of their respective Subsidiaries shall propose, accept or agree to the sale, divestiture, disposition, licensing or holding separate of any entity assets or asset businesses of such Party themselves or any of its Affiliates their Affiliates, or otherwise take any other Person action that limits the freedom of action with respect to, or (ii) terminatetheir ability to retain, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party their businesses, product lines, or any assets or those of its their Affiliates, except with each in order to avoid the entry of or to effect the dissolution of any injunction or other Parties’ prior written consent. During the Interim PeriodOrder (whether temporary, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorpreliminary or permanent or otherwise) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults withreceipt of any necessary approvals or clearances of Governmental Authorities (including under the HSR Act, in the case of Acquiror EU Merger Regulation and the CompanySpecified Foreign Competition Laws, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreementapplicable), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of Roadrunner. If any Proceeding or comparable order is brought by any Governmental Authority with authority in respect of the Company HSR Act, the EU Merger Regulation or the Specified Foreign Competition Laws, if applicable, challenging, or seeking to make illegal, materially delay or otherwise directly or indirectly restrain or prohibit, the Transactions or any of the other transactions contemplated by this Agreement (not to be unreasonably withheldany such Proceeding, conditioned a “Regulatory Proceeding”), then Roadrunner, New Pubco and Coyote shall contest on the merits, through litigation, any objections or delayed)opposition raised by such Governmental Authority in such Regulatory Proceeding. Without limiting the generality of the foregoing, Roadrunner and New Pubco shall direct the defense of any Regulatory Proceeding in no event shall good faith consultation with Coyote. Coyote will obtain the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not of Roadrunner prior to be unreasonably withheld, contained settling or delayed)satisfying any such Regulatory Proceeding.
(dc) If Acquiror Each of Roadrunner, on the one hand, and Coyote, on the Company determine other hand, shall cooperate regarding, and keep the other reasonably apprised of the status of, matters relating to the completion of the transactions contemplated hereby and work cooperatively in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then connection (i) Acquiror shall call a special meeting with obtaining all required approvals or consents of its stockholders to be held any Governmental Authority and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror all other communications with, and inquiries or requests for additional information from, any Governmental Authority with respect to the Transactions. In that regard, each Party shall without limitation: (A) promptly notify the other of, and if in writing, furnish the other with copies of (or in the case of oral communications, advise the other orally of) any substantive communications from or with any Governmental Authority with respect to the Transactions and (B) not participate in any meeting with any such Governmental Authority with respect to the Transactions and the Company shall cooperate with other transactions contemplated by this Agreement and the preparationother Transaction Agreements without giving, filing in the case of Coyote, Roadrunner, and mailing in the case of proxy materials to be sent to Acquiror’s stockholders seeking approval Roadrunner, Coyote, reasonable prior notice of the Extension Proposal in accordance with the same effortsmeeting and, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required reasonably practicable and permitted by such Governmental Authority, the opportunity to obtain approval of the Extension Proposal attend and to cause sufficient funds to be retained participate thereat. Coyote and Roadrunner will consult in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth advance and cooperate with each other in Section 9.01(f), Acquiror shall deposit such additional amount of funds connection with any information or proposals submitted in connection with any Proceeding or comparable order under or relating to the Trust Account (which deposit shall be funded by a loan from HSR Act, the Sponsor to Acquiror) necessary to obtain approval of EU Merger Regulation and the Extension Proposal Specified Foreign Competition Laws, if applicable, in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance connection with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date transactions contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror this Agreement and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceother Transaction Agreements.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (R1 RCM Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent, Merger Sub and the Parties Partnership shall use their respective its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under Applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and (ii) using reasonable best efforts obtaining consents of all Governmental Entities and the expiration or termination of all applicable waiting periods under applicable Antitrust Laws necessary to obtain PIPE Investments as consummate the transactions contemplated by Section 8.04hereby). Without limiting the generality of Notwithstanding the foregoing, each of Parent, Merger Sub and the Parties Partnership shall use its reasonable best efforts to obtain, file with or deliver toefforts, as applicabledetermined by the Partnership and/or the Owner Representative, any consents to obtain consents, waivers and approvals of any all Governmental Authorities Entities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents, including HSR Act filing fees and any filing fees in connection with any other Antitrust Law, but excluding fees and expenses of the Transaction AgreementsPartnership’s advisors and representatives (the “Antitrust Filing Fees”), shall be borne by Parent. Each Party Notwithstanding anything to the contrary herein, Parent shall not be required to make a filing pursuant to the HSR Act until the Partnership shall have obtained the Minimum Partnership Approval. Within five (A5) Business Days after the Partnership provides Parent with evidence that the Minimum Partnership Approval is satisfied, or after Parent provides notice to the Partnership that it is waiving such requirement (which Parent may do in its sole discretion), each party shall make all required filings or cause to be made an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond Transaction. The parties shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions Act or any Transaction Agreementother Antitrust Law. Without limiting the foregoing, no party shall extend (xor take any action that has or may have the effect of extending) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period timing under the HSR Act or any other Antitrust Law or enter into any agreement or understanding with any Governmental Authority not to consummate the TransactionsEntity, except with the prior written consent of each other party.
(b) In the event that any Action by any Governmental Entity or other PartiesPerson is commenced which questions the validity or legality of the Transactions or seeks to prohibit, prevent or restrict consummation of the Transactions under any applicable Antitrust Law or seeks damages in connection therewith, the Partnership shall cooperate in all respects with Parent and Merger Sub. The Company will pay all filing fees Notwithstanding anything in this Agreement to the contrary, none of the Partnership, Parent, Merger Sub, or any of their respective Affiliates shall be required to defend, contest, or resist any Action, whether judicial or administrative, or to take any action to have vacated, lifted, reversed, or overturned any Order, in connection with the Transactions.
(c) Each of the parties, in connection with the Agreement and the Transactions, with respect to actions taken on or after the date hereof shall: (i) promptly notify the other of, and if in writing, furnish the other with copies of (or, in the case of oral communications, advise the other of) any substantive communications from or with any Governmental Entity, except for the parties’ HSR filings; (ii) permit the other to review and discuss in advance, and consider in good faith the view of the other in connection with, any proposed substantive written or oral communication with any Governmental Entity, except for the parties’ HSR filings; (iii) not participate in any substantive meeting, teleconference, or videoconference, or have any substantive communication with any Governmental Entity unless it has given the other a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Entity, gives the other the opportunity to attend and participate therein; (iv) furnish the other’s outside legal counsel with copies of all filings and communications between it and any such Governmental Entity with respect to the Agreement; and (v) furnish the other’s outside legal counsel with such necessary information and reasonable assistance as the other’s outside legal counsel may reasonably request in connection with its preparation of necessary submissions of information to any such Governmental Entity. Subject to Applicable Law, the parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted on behalf of any party hereto relating to proceedings under the HSR Act when due or any other Antitrust Law. Any information required to be provided to the other party pursuant to this section may be redacted to prevent the disclosure of information related to the valuation of the Partnership and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. any party may reasonably designate any competitively sensitive information provided to another party as “outside counsel only.”
(d) Notwithstanding anything to the contrary in this Agreement, each of Parent and Merger Sub agree to use commercially reasonable efforts to promptly eliminate each and every impediment under the HSR Act or applicable Antitrust Laws that may be asserted by any Governmental Entity so as to enable the parties to close the Transactions as promptly as possible; provided, however, that nothing in this Section 8.01 or any other provision of this Agreement obligates any Party shall require Parent, Merger Sub, or any of its Affiliates to their respective Subsidiaries to, and the Partnership shall not, without the prior written consent of Parent, become subject to, consent to, or offer or agree to to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement, or Order to: (i) sell, license or otherwise dispose oflicense, assign, transfer, divest, hold separate, dispose, or hold separate and agree to sell, license or otherwise dispose ofof any assets, any entities business, or assets portion of business of the Company Partnership, the Surviving Entity, Parent, Merger Sub, or any of their respective Subsidiaries; (ii) conduct, restrict, operate, invest, or otherwise change the assets, business, or portion of business of the Partnership, the Surviving Entity, Parent, Merger Sub, or any of their respective Subsidiaries in any manner; (iii) impose any restriction, requirement, or any entity limitation on the operation of the business or asset portion of such Party the business of the Partnership, MAG, the Surviving Entity, Parent, Merger Sub, or any of its Affiliates their respective Subsidiaries; (vi) propose, take, or agree to, or otherwise take any actions that may limit the freedom of action of Parent, Merger Sub or any other Person of their respective Subsidiaries to retain (A) one (1) or more of its assets, categories of assets, operations, customers or businesses; or (iiv) terminate, modify, amend or assign any existing relationships and contractual rights or and obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline if requested by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadlineParent, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, noticePartnership will become subject to, consent and other cooperation standards applicable to to, or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement, or Order so long as such requirement, condition, limitation, understanding, agreement, or Order is only binding on the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and Partnership in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceClosing occurs.
Appears in 1 contract
Samples: Merger Agreement (CBIZ, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under Applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 10, (y) obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers and (ii) using reasonable best efforts permits necessary or advisable to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with be obtained from any third party or deliver to, as applicable, any consents of any Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated by hereby, and (z) obtaining approval for listing the Transaction Agreements. Each Party shall (A) make all required filings Company Class A Ordinary Shares and Company Warrants issued pursuant to this Agreement on Nasdaq). Subject to Section 12.06, the HSR Act costs incurred in connection with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any obtaining such consents of all Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between AcquirorAuthorities, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions such expiration or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all applicable waiting periods under applicable to the Transactions under the HSR ActAntitrust Laws, and (y) each Party and its respective Affiliates shall not extend including any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with any Antitrust Law, and any fees associated with obtaining approval for listing the HSR Act when due Company Class A Ordinary Shares and such fees Company Warrants issued pursuant to this Agreement on Nasdaq, shall be deemed paid 50% by the Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything by PAQC.
(b) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the contrary in this Agreement, nothing in this Section 8.01 transactions contemplated hereby or any other provision of regulatory filings under Applicable Law and obtaining approval for listing the Company Class A Ordinary Shares and Company Warrants issued pursuant to this Agreement obligates any on Nasdaq.
(c) Each Party or any of its Affiliates shall, in connection with the Agreement and the transactions contemplated hereby, to agree to the extent permitted by Applicable Law: (i) sell, license or otherwise dispose promptly notify the other Parties of, or hold separate and agree to sellif in writing, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of furnish the other Parties’ prior written consent. During the Interim PeriodParties with copies of (or, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirororal communications, advise the other Parties of) any material substantive communications from or Acquiror with any Governmental Authority, (ii) cooperate in connection with any proposed substantive written or oral communication with any Governmental Authority and permit the case of the Company), a reasonable opportunity other Parties to review and discuss in advance, and consider in good faith the views view of the other Parties in connection with, any proposed substantive written or oral communication to with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees Authority, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental Authority, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant or agreement shall govern Parties’ outside legal counsel with copies of all filings and control solely to the extent of communications between it and any such conflict Governmental Authority and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority; provided that materials required to be provided pursuant to this Section 9.01(c) may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iiiB) to the extent required remove references to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceprivileged information.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.046). Without limiting the generality of the foregoing, each of the Parties shall use commercially reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by this Agreement. All costs incurred in connection with obtaining such consents, including, if applicable, the Transaction AgreementsHSR Act filing fee, shall be borne by KBL; provided, however, that each Party shall bear its out-of-pocket costs and expenses of its own legal counsel and other advisors or consultants in connection with the preparation of any such filings or consents. Each Party shall (A) make all required filings make, or cause to be made, to the extent necessary, an appropriate filing pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, the filing under the HSR Act within 10 ten (10) Business Days) following after the Original date of this Agreement Date (unless filed prior to the date of this Agreement) and (B) shall respond as promptly as reasonably practicable to any requests by any the appropriate Governmental Authority Entities for additional information and documentary material that may be requested pursuant to the HSR Act, if applicable. Acquiror Each Party shall promptly inform the Company other Parties of any communication between Acquiror, on the one hand, such Party and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Entity regarding any of the Transactions or any Transaction transactions contemplated by this Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Actif applicable, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Contemplated Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (iA) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of any the Company, any of the Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (iiB) terminate, amend or assign any existing relationships and contractual rights or obligations, (C) amend, assign or terminate existing licenses or other agreements, or (D) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesAffiliates (including, in the case of the Company, the Company and the Company Subsidiaries), except with each of the such other Parties’ Party’s prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing and termination of this Agreement in accordance with its terms, Acquiroreach of KBL and Merger Sub, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), other Party a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror KBL or Merger Sub, the Stockholder Representative and the Company, or, in the case of the Company, KBL in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and KBL or Merger Sub, the CompanyStockholder Representative, or, in the case of either Company or Acquirorthe Company, KBL, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to Except as required by this Agreement, the Company and its Subsidiaries shall not, and shall cause their respective Affiliates not to, engage in any Transaction Agreements action or enter into any matters relating thereto (collectively, the “Transaction Litigation”) commenced againsttransaction or permit any action to be taken or transaction to be entered into, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, howevercase, that in no event shall Acquiror settle would prevent or compromise any Transaction Litigation without materially delay obtaining the prior written consent consents of all Governmental Entities necessary to consummate the Company (not to be unreasonably withheld, conditioned or delayed)transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in no event shall the Company or and its Subsidiaries shall not, and shall cause its Affiliates and their respective ultimate parent entities and Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into of their respective Representatives settle a definitive agreement relating to, or compromise the consummation of such acquisition, merger or consolidation would reasonably be expected to: (i) impose any Transaction Litigation without Acquiror’s prior written consent delay in the obtaining of, or increase the risk of not obtaining, any consents, authorizations, orders, declarations or approvals of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement (including, if applicable, pursuant to the HSR Act) or the expiration or termination of any applicable waiting period; (ii) increase the risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the transactions contemplated by this Agreement; (iii) increase the risk of not being able to be unreasonably withheld, contained remove any such order on appeal or delayed)otherwise; or (iv) delay or prevent the consummation of the transactions contemplated by this Agreement.
(d) If Acquiror Each of the Company and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders Subsidiaries agrees to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior cause Xxxxxxx Xxxxx & Xxxxxxxxx LLP (“Xxxxxxx”) to deliver an opinion to KBL, in the form reasonably satisfactory to KBL and its counsel, to the Acquiror Termination Date of a proposal to amend effect that (a) the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, Reorganization was duly and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal validly consummated in accordance with the same efforts, notice, consent and other cooperation standards all applicable to the preparation, filing and mailing laws of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02Province of British Columbia, (iiib) to this Agreement and the extent required to obtain approval Contemplated Transactions do not conflict with any of the Extension Proposal applicable documents governing the Reorganization and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquirorc) necessary to obtain approval all of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f)Exchangeable Shares have been duly authorized and are validly issued, such amount to be determined in good faith by Acquiror after consultation with its advisors, fully paid and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencenonassessable.
Appears in 1 contract
Samples: Business Combination Agreement (KBL Merger Corp. Iv)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Buyer and each Seller shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction of the closing Closing conditions set forth in Article IX and (ii) using 6). Each Party shall use reasonable best efforts to obtain PIPE Investments consents of all Governmental Entities (including, for the avoidance of doubt, from and after the Closing, to obtain any consents or approvals and complete the filings and registrations required in connection with the matters set forth in item 4 of Schedule 4.3(a) as promptly as practicable) and other Persons necessary to consummate the transactions contemplated by Section 8.04)this Agreement and each Party shall provide all reasonable assistance requested by any other Party in connection therewith, including any information relating to such Party or its Affiliates as required to be provided under applicable Law in order to obtain consents of Governmental Entities and other Persons. Without limiting the generality of the foregoing, each Carlisle Asia Pacific shall provide such reasonable assistance and cooperation as is reasonably requested by ECS HK in connection with the preparation and filings of the Parties shall use reasonable best efforts to obtainsuch documents, file with filings and registrations described in item 4 of Schedule 4.3(a) (or deliver to, as applicable, any consents of any Governmental Authorities or other Persons which are necessary to consummate obtain the Transactions approvals contemplated thereby) so as to enable such filings to be made as promptly as practicable after the Closing. If at any time before Closing (1) the UK National Security and Investment Bxxx receives Royal Assent and enters into force as a UK Act of Parliament (the “UK NSI Act”) and (2) the provisions in the UK NSI Act or related legislation regulating the notification of transactions to the UK Secretary of State for Business, Energy and Industrial Strategy (the “UK Secretary of State”) enter into force, then if the Buyers determine that a notification to the UK Secretary of State is required or advisable thereunder in relation to the transaction contemplated by this Agreement, the Buyers shall promptly (and in no event later than ten (10) Business Days after such legislation enters into force), prepare and submit, at the Buyers’ sole cost and expense, a notification of the transactions contemplated by this Agreement to the Transaction AgreementsUK Secretary of State in accordance with the UK NSI Act; provided, that the Sellers shall promptly provide to the Buyers all information required by the Buyers to prepare such notification. The Buyers and the Sellers shall supply as promptly as practicable to the appropriate Governmental Entities any additional information and documentary material that may be requested in connection with such notification to the UK Secretary of State. All HSR Act filing fees shall be borne by ECS. Each Party shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act (or any similar non-U.S. Laws) with respect to the Transactions transactions contemplated by this Agreement as promptly as practicable (and in the case of any event filing pursuant to the HSR Act, within 10 five Business Days) following after the Original date of this Agreement Date (and (Bany such filing shall request “early termination” of any applicable waiting periods) respond and shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActAct (or any similar non-U.S. Laws). Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, The Buyers and the Company Sellers shall act promptly inform Acquiror of and cooperatively to supply as promptly as practicable to the appropriate Governmental Entities any communication between either Company, additional information and documentary material that may be requested in connection with the registration set forth on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction AgreementSchedule 5.3(a). Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to Sellers, the Transactions under the HSR Act, Buyers and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act (or any similar non-U.S. Laws) or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with Parties (such consent not to be unreasonably withheld), and (ii) the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything Buyers agree (but only to the contrary in extent otherwise required by the first sentence of this Section 5.3(a)) to take any and all actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to expeditiously consummate the transactions contemplated by this Agreement, nothing but in any event prior to the Termination Date, including (but only to the extent otherwise required by the first sentence of this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to 5.3(a)) (iA) sellselling, license divesting, licensing or otherwise dispose disposing of, or hold holding separate and agree otherwise agreeing to sell, divest, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company Acquired Business after the Closing, (B) terminating, amending or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations of the Acquired Business (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligationsterminating existing licenses or other agreements of the Acquired Business (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements.
(b) In the event any claim, Action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced which challenges the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to reasonably cooperate and use reasonable best efforts to defend against such claim, Action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such Action, suit or other proceeding, the Buyers agree to use their reasonable best efforts to take any and all actions that are necessary to have such injunction or other order lifted, in order to expeditiously consummate the consummation of the transactions contemplated by this Agreement.
(c) Each Party shall, as promptly as practicable, notify the other Parties of any communication it or its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and permit the other Parties to review in advance any proposed material communication by it to any Governmental Entity. No Party shall agree to participate in any substantive meeting or substantive conversation with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the measures other Parties in advance and, to the foregoing sentence extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate at such meeting or in such conversation. Each Party will provide the other Parties with respect to any other Party copies of all material correspondence, filings or communications between it or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorrepresentatives, on the one hand, and the Companyany Governmental Entity or members of its staff, on the other hand, shall give counsel with respect to this Agreement and the transactions contemplated by this Agreement. Notwithstanding the foregoing, for the Company avoidance of doubt, this Section 5.3(a) shall not apply with respect to Tax matters.
(in d) The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the case of Acquiror) or Acquiror (in other under this Section 5.3 as “outside counsel only.” Such materials and the case information contained therein shall be given only to outside counsel of the Company)recipient and will not be disclosed by such outside counsel to employees, a reasonable opportunity officers, or directors of the recipient without the advance written consent of the party providing such materials. In addition, subject to review applicable Law, the Parties shall consult and cooperate with each other in advanceadvance in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and consider in good faith the views of the other in connection with, any proposed written communication proposals made or submitted to any Governmental Authority relating to Entity regarding the Transactions transactions contemplated by this Agreement by or the Transaction Agreements. Each on behalf of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionParty.
(be) Notwithstanding anything Prior to the contrary in the Closing or termination of this Agreement, each Buyer shall not, and shall cause its controlled Affiliates not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or Capital Stock in, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets or Capital Stock, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation would reasonably be expected to: (i) if this Section 8.01 conflicts with impose any other covenant material delay in the obtaining of, or agreement in increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement that is intended or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity seeking or entering an Order prohibiting the consummation of the transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to specifically address remove any subject mattersuch Order on appeal or otherwise; or (iv) prevent or materially delay the consummation of the transactions contemplated by this Agreement.
(f) Following the Closing and until such time as the consents or approvals and the completion of the filings and registrations set forth in item 4 of Schedule 4.3(a) are obtained, then the Sellers and their Affiliates shall cooperate with ECS HK (i) in using commercially reasonable efforts to obtain such other covenant or agreement shall govern consents and control solely to the extent of approvals and complete such conflict filings and registrations and (ii) in no event shall Acquiror or the Company making alternative arrangements as may be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant reasonably requested by ECS HK so that ECS HK is entitled to the terms benefits of any Contract to which the Company or its Subsidiaries ownership of CBPH and is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, economically in the case of Acquiror or any of its Representatives (in their capacity same position as a representative of Acquiror) or, in the case if such consents and approvals had actually been obtained and such filings and registrations had been completed with effect as of the CompanyClosing Date, or any including by the Sellers and their Affiliates causing their respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice representatives with respect to CBPH (including but not limited to those holding the positions of the legal representative, director, supervisor and general manager of CBPH) to remain in place until they are replaced with representatives of ECS HK and to take such actions on behalf of CBPH as are reasonably requested in writing by ECS HK or its representatives from time to time. To the extent any of such Transaction Litigationrepresentatives of the Sellers incur any Liability or expense in taking actions requested in writing by ECS HK pursuant to this Section 5.3(f), ECS HK shall promptly reimburse, indemnify and (iv) reasonably cooperate with each otherhold harmless such representatives for such Liability or expense. Notwithstanding Following the foregoing, Acquiror shall, subject to Closing and without limiting until such time as the covenants and agreements, consents or approvals and the rights completion of the Company, filings and registrations set forth in the immediately preceding sentenceitem 4 of Schedule 4.3(a) are obtained, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (ECS HK, Carlisle Asia Pacific shall not attempt to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting amend CBPH’s organizational documents (other than as contemplated under item 4 of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date Schedule 4.3(a)), or adopt or carry out any plan of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”)complete or partial liquidation or dissolution of CBPH, (ii) Acquiror and the Company shall cooperate with the preparationtransfer, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval pledge or sell any of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable CBPH Equity to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02a third party, (iii) make any declaration or payment of, or set aside funds for, any dividend or other distribution with respect to the extent required to obtain approval any of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f)CBPH Equity, Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and or (iv) and in the event the Extension Proposal is duly approved by the affirmative vote increase or decrease CBPH’s registered capital as of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencedate hereof.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Carlisle Companies Inc)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Seller, Buyer, Parent Guarantor and each of their respective Affiliates shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX ARTICLE VII and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreementshereby). The HSR Act filing fee will be split equally between Buyer and Seller. Each Party shall (A) make all required filings an appropriate filing pursuant to the HSR Act (which filing shall specifically request early termination of the waiting period prescribed by the HSR Act) with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 two (2) Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (xi) the Parties agree to request early termination Buyer, Seller, Parent Guarantor and each of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend take any action that has or may have the effect of extending any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of Seller, and (ii) Buyer and Parent Guarantor agree to take (and Buyer’s and Parent Guarantor’s “reasonable best efforts” shall expressly including the other Parties. The Company will pay taking of) all filing fees actions that are necessary or advisable or as may be required by any Governmental Entity to expeditiously (and in connection with no event later than the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to Termination Date) consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to including, (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose ofof (i) any entities, assets or facilities of any entities Group Company after the Closing or assets (ii) any entity, facility or asset of the Company Buyer, Parent Guarantor or any of their respective Subsidiaries Affiliates before or any entity after the Closing, (B) terminating, amending or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligations. No Party shall terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements.
(b) In the event any Proceeding by a Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, Buyer, Seller and Parent Guarantor agree to cooperate and use all reasonable efforts to defend against such Proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, transactions contemplated hereby.
(c) Seller and the Company, on the other hand, Buyer shall give permit counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(cd) During the Interim Periodperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to except as required by this Agreement, Buyer, Parent Guarantor and each of their respective Affiliates shall not engage in any Transaction Agreements action or enter into any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror transaction or permit any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, action to be taken or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject transaction to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, howeverbe entered into, that in no event shall Acquiror settle would materially impair or compromise any Transaction Litigation without delay Buyer’s ability to consummate the prior written consent of the Company (not to be unreasonably withheld, conditioned transactions contemplated by this Agreement or delayed)perform its obligations hereunder. Without limiting the generality of the foregoing, in no event shall none of Buyer, Parent Guarantor, the Company Subsidiaries of Buyer or its Subsidiaries Parent Guarantor or any of their respective Representatives settle Affiliates shall acquire (whether by merger, consolidation, stock or compromise asset purchase or otherwise), or agree to so acquire, any Transaction Litigation without Acquiror’s prior written consent amounts of assets of or any equity in any other Person or any business or division thereof, unless that acquisition or agreement would not reasonably be expected to (i) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to be unreasonably withheldconsummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under the HSR Act, contained or delayed)(ii) increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or increase the risk of not being able to remove any such order on appeal or otherwise.
(de) If Acquiror and From the Company determine in good faith that it is probable that Cut-Off Time through the Transactions will not be consummated on or before March 12Closing Date, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror Seller and the Company shall cooperate with use commercially reasonable efforts to give all notices to, and obtain all consents from, all third parties to the preparationagreements set forth on Schedule 3.5. Within two (2) Business Days following the date on which the Cut-Off Time occurs, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval the Company shall deliver written notice (including by e-mail) of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable transactions contemplated by this Agreement to the preparation, filing and mailing Office of the Proxy StatementInspector General of the Department of Health and Human Services. Notwithstanding the foregoing, and other related materials and actionsneither Seller nor the Company shall be required to incur any liabilities or provide any financial accommodation in order to obtain any such third party consents. For the avoidance of doubt, as set forth in Section 8.02, (iii) it shall not be a condition to the extent required to obtain approval closing of the Extension Proposal and to cause sufficient funds to be retained in transactions contemplated by this Agreement that any such notices (other than the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date notice contemplated by the Extension Proposal. Ifsecond sentence of this Section 6.3(e) and the expiration or termination of any waiting period under the HSR Act) be sent to, following or any such approval of the Extension Proposalconsents be received from, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencesuch third parties.
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Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective its reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04delivery of such Ancillary Document). Without limiting the generality of Notwithstanding the foregoing, each of the Parties Party shall use reasonable best efforts to obtainobtain consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents.
(b) Each Party shall (i) make, file with or deliver tocause to be made, an appropriate filing or take, or cause to be taken, any required actions, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 ten (10) Business Days) following after the Original Agreement Date date of this Agreement, (ii) request for early termination of the waiting period thereunder and (Biii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror All filing fees in connection with the HSR Act shall be Company Expenses. Each Party shall promptly inform the Company other Parties of any communication between Acquiror, on the one hand, such Party and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Entity regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of PTAC and the other PartiesCompany. The Company will pay PTAC agrees to take all filing fees actions that are required by any Governmental Entity in connection with the filing pursuant to the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to expeditiously consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates including to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall , (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements, provided that any such action: (x) is conditioned upon the consummation of the transactions contemplated by this Agreement and (y) does not require PTAC to agree to take, any action if such action would have, or would be reasonably expected to have, a Company Material Adverse Effect.
(c) From and after the date of this Agreement until the earlier of the measures Closing or termination of this Agreement in accordance with its terms, the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other PTAC Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany PTAC Party) or Acquiror PTAC and its counsel (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction Agreementsany Ancillary Document. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and any PTAC Party, the Company, or, in the case of the Company, PTAC, in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and any PTAC Party, the Company, or, in the case of either Company or Acquirorthe Company, PTAC, the opportunity to attend and participate in such meeting or discussion.
(bd) In furtherance of, and without limiting the Parties’ obligations pursuant to, Section 5.2(a), the Company shall use commercially reasonable efforts to obtain, prior to the Closing, written consents, in form and substance reasonably acceptable to PTAC, from each of the counterparties to the agreements set forth on Section 5.2(d) of the Company Schedules; provided that nothing herein shall require a Party or any of its respective Affiliates to expend money, commence any Proceeding or offer or grant any accommodation (financial or otherwise) to any third party. All costs incurred in connection with obtaining such consents shall be Company Expenses.
(e) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
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Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Buyer and Seller shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction of the closing Closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.047). Without limiting the generality of the foregoing, each of the Parties Buyer shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreementsthis Agreement, and Seller shall provide all reasonable assistance requested by Buyer in connection therewith. All HSR Act and Foreign Competition Law filing fees shall be borne by Buyer. Each Party shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act and the Foreign Competition Laws set forth on Schedule 3.5 with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 five Business Days) following after the Original date of this Agreement Date (and (Bany such filing shall request “early termination” of any applicable waiting periods) respond and shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform Act or the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreementapplicable Foreign Competition Laws. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActSeller, Buyer and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or any Foreign Competition Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay , and (ii) Buyer agrees to take any and all filing fees in connection with actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to expeditiously consummate the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, nothing but in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates event prior to agree to the Buyer Termination Date, including (iA) sellselling, license divesting, licensing or otherwise dispose disposing of, or hold holding separate and agree otherwise agreeing to sell, divest, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company Group Companies after the Closing or any of their respective Subsidiaries or any entity entity, facility or asset of such Party Buyer or any of its Affiliates Affiliates, (B) terminating, amending or any other Person or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligationsterminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements.
(b) In the event any Action by any Governmental Entity or other Person is commenced which challenges the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such Action and, if an injunction or other Order is issued by a Governmental Entity in any such Action, Buyer agrees to take any and all actions that are necessary to have such injunction or other Order lifted, in order to expeditiously consummate the consummation of the transactions contemplated by this Agreement.
(c) Each Party shall promptly notify the other Parties of any communication it or its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and permit the other Parties to review in advance any proposed communication by it to any Governmental Entity. No Party shall agree to participate in any meeting or substantive conversation with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the measures other Parties in advance and, to the foregoing sentence extent permitted by such Governmental Entity, gives the other Parties the opportunity to attend and participate at such meeting or conversation. Each Party will provide the other Parties with respect to any other Party copies of all correspondence, filings or communications between it or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorrepresentatives, on the one hand, and the Companyany Governmental Entity or members of its staff, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, this Agreement and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)transactions contemplated by this Agreement.
(d) If Acquiror The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 6.3 as “outside counsel only.” Such materials and the Company determine in good faith that it is probable that information contained therein shall be given only to outside counsel of the Transactions recipient and will not be consummated on disclosed by such outside counsel to employees, officers, or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval directors of the Extension Proposal in accordance with recipient without the same efforts, notice, advance written consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statementparty providing such materials. In addition, and other related materials and actions, as set forth in Section 8.02, (iii) subject to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror the Parties shall promptly thereafter amend consult and cooperate with each other in advance in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and proposals made or submitted to any Governmental Entity regarding the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date transactions contemplated by the Extension Proposal. If, following this Agreement by or on behalf of any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceParty.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Seller, Buyer, Parent Guarantor and each of their respective Affiliates shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX ARTICLE VII and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreementshereby). The HSR Act filing fee will be split equally between Xxxxx and Seller. Each Party shall (A) make all required filings an appropriate filing pursuant to the HSR Act (which filing shall specifically request early termination of the waiting period prescribed by the HSR Act) with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 two (2) Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (xi) the Parties agree to request early termination Buyer, Seller, Parent Guarantor and each of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend take any action that has or may have the effect of extending any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of Seller, and (ii) Buyer and Parent Guarantor agree to take (and Buyer’s and Parent Guarantor’s “reasonable best efforts” shall expressly including the other Parties. The Company will pay taking of) all filing fees actions that are necessary or advisable or as may be required by any Governmental Entity to expeditiously (and in connection with no event later than the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to Termination Date) consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to including, (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose ofof (i) any entities, assets or facilities of any entities Group Company after the Closing or assets (ii) any entity, facility or asset of the Company Buyer, Parent Guarantor or any of their respective Subsidiaries Affiliates before or any entity after the Closing, (B) terminating, amending or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligations. No Party shall terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements.
(b) In the event any Proceeding by a Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, Buyer, Seller and Parent Guarantor agree to cooperate and use all reasonable efforts to defend against such Proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, transactions contemplated hereby.
(c) Xxxxxx and the Company, on the other hand, Xxxxx shall give permit counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties Seller and Xxxxx agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(cd) During the Interim Periodperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to except as required by this Agreement, Buyer, Parent Guarantor and each of their respective Affiliates shall not engage in any Transaction Agreements action or enter into any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror transaction or permit any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, action to be taken or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject transaction to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, howeverbe entered into, that in no event shall Acquiror settle would materially impair or compromise any Transaction Litigation without delay Buyer’s ability to consummate the prior written consent of the Company (not to be unreasonably withheld, conditioned transactions contemplated by this Agreement or delayed)perform its obligations hereunder. Without limiting the generality of the foregoing, in no event shall none of Buyer, Parent Guarantor, the Company Subsidiaries of Buyer or its Subsidiaries Parent Guarantor or any of their respective Representatives settle Affiliates shall acquire (whether by merger, consolidation, stock or compromise asset purchase or otherwise), or agree to so acquire, any Transaction Litigation without Acquiror’s prior written consent amounts of assets of or any equity in any other Person or any business or division thereof, unless that acquisition or agreement would not reasonably be expected to (i) increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to be unreasonably withheldconsummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under the HSR Act, contained or delayed)(ii) increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or increase the risk of not being able to remove any such order on appeal or otherwise.
(de) If Acquiror and From the Company determine in good faith that it is probable that Cut-Off Time through the Transactions will not be consummated on or before March 12Closing Date, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror Seller and the Company shall cooperate with use commercially reasonable efforts to give all notices to, and obtain all consents from, all third parties to the preparationagreements set forth on Schedule 3.5. Within two (2) Business Days following the date on which the Cut-Off Time occurs, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval the Company shall deliver written notice (including by e-mail) of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable transactions contemplated by this Agreement to the preparation, filing and mailing Office of the Proxy StatementInspector General of the Department of Health and Human Services. Notwithstanding the foregoing, and other related materials and actionsneither Seller nor the Company shall be required to incur any liabilities or provide any financial accommodation in order to obtain any such third party consents. For the avoidance of doubt, as set forth in Section 8.02, (iii) it shall not be a condition to the extent required to obtain approval closing of the Extension Proposal and to cause sufficient funds to be retained in transactions contemplated by this Agreement that any such notices (other than the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date notice contemplated by the Extension Proposal. Ifsecond sentence of this Section 6.3(e) and the expiration or termination of any waiting period under the HSR Act) be sent to, following or any such approval of the Extension Proposalconsents be received from, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencesuch third parties.
Appears in 1 contract
Samples: Stock Purchase and Contribution Agreement (Fresenius Medical Care AG & Co. KGaA)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain consummate the PIPE Investments as contemplated by Section 8.04Financing on the terms and subject to the conditions set forth in the PIPE Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to to, and each of the Parties shall cause its Affiliates to, obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary necessary, proper or advisable to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between AcquirorSPAC, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of SPAC and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Company.
(ib) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorSPAC) or Acquiror SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and SPAC, the Company, or, in the case of the Company, SPAC in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and SPAC, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror SPAC or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions.
(cd) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, SPAC or any of its Representatives (in their capacity as a representative of AcquirorSPAC) or, in the case of the Company, or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, (i) SPAC and the rights of the Company, set forth in the immediately preceding sentence, Company shall jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that Litigation and (ii) in no event shall Acquiror SPAC (or any of its Representatives), on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent, the Parties Merger Subs and the Company shall use their respective reasonable best efforts to take, take or cause to be taken, taken all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX ARTICLE 6). Each of Parent, the Merger Subs and (ii) using reasonable the Company shall use best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreementsthis Agreement. Each Party party hereto shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 five (5) Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be reasonably requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActCompany, Parent and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Partiesparties hereto. The Company will pay all All filing fees in connection with payable under the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or borne by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionParent.
(b) Notwithstanding anything to Parent and the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one handMerger Subs shall, and shall cause their Affiliates to, take all actions necessary to resolve any objections that may be asserted by any Governmental Entity to expeditiously consummate the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to transactions contemplated by this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, each of Parent and the Merger Subs shall:
(i) at Parent’s sole cost, comply with all restrictions and conditions, if any, required by any Governmental Entity with respect to Antitrust Laws in no event shall connection with granting any necessary clearance, terminating any applicable waiting period or otherwise not opposing consummation of the transactions contemplated hereby including (1) agreeing to sell, divest, hold separate, license, cause a third party to acquire, or otherwise dispose of, any Subsidiary, operations, divisions, businesses, product lines, customers or assets of Parent, its Affiliates (including the Surviving Entity), the Company or any Group Company contemporaneously with or after the Closing and regardless of whether a third party purchaser has been identified or approved prior to the Closing (a “Divestiture”), (2) taking or committing to take such other actions that may limit Parent, its Subsidiaries Affiliates (including the Surviving Entity), or (after the Closing) any Group Company’s freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets, and (3) entering into any order, consent decree or other agreement to effectuate any of the foregoing;
(ii) amend, assign or terminate existing, or enter into any new, licenses, contracts or other agreements or other business relationship insofar as required to obtain any necessary clearance of any Governmental Entity, obtain termination of any applicable waiting period under any Antitrust Laws or otherwise cause any Governmental Entity not to oppose the consummation of the transactions contemplated hereby ; and
(iii) use reasonable best efforts to oppose any request for or the entry of, and seek to have vacated or terminated, any order, judgment, decree, injunction or ruling of any Governmental Entity that could restrain, prevent or delay the Closing, including by defending through litigation, any action asserted by any Person in any court or before any Governmental Entity and by exhausting all avenues of appeal, including appealing properly any adverse decision or order by any Governmental Entity.
(c) In furtherance of the foregoing, Parent shall negotiate in good faith with all Governmental Entities and, to the extent necessary, third parties in connection with a Divestiture or any other matter referred to in Section 5.4(b) in order to enter into all necessary definitive agreements with all such Persons as promptly as practicable after receipt by Parent or the Company of their respective Representatives settle any formal request for the submission of additional information or compromise documentary material by either the United States Federal Trade Commission or the Antitrust Division of the United States Department of Justice pursuant to 15 U.S.C. § 18a(e)(1)(A) or the commencement of a formal second phase investigation by any Transaction Litigation without Acquiror’s other Governmental Entity, and in any event a sufficient time prior written consent (not to be unreasonably withheld, contained or delayed)the Termination Date to permit the Closing to occur prior to such date.
(d) If Acquiror Each of Parent and the Company determine will promptly notify the other parties hereto of any written communication made to or received by either Parent and/or the Company, as the case may be, from any Governmental Entity regarding any of the transactions contemplated hereby, and, subject to applicable Law, if practicable, permit the other parties hereto to review in good faith that it is probable that advance any proposed written communication to any such Governmental Entity and incorporate the Transactions will other parties’ reasonable comments, not be consummated on agree to participate in any substantive meeting or before March 12discussion with any such Governmental Entity in respect of any filing, 2023 (investigation or inquiry concerning this Agreement or the “Acquiror Termination Date”)transactions contemplated hereby unless, then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal extent reasonably practicable, it consults with the other parties hereto in advance and, to amend the Acquiror Organizational Documents extent permitted by such Governmental Entity, gives the other parties the opportunity to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”attend, and furnish the other parties with copies of all correspondence, filings and written communications between them and their Affiliates and their respective representatives on one hand and any such proposalGovernmental Entity or its respective staff on the other hand, the “Extension Proposal”), (ii) Acquiror with respect to this Agreement and the Company transactions contemplated hereby, provided that this Agreement shall cooperate not obligate any party to disclose to any other party such portions of any proposed or final correspondence, filing, or other written communication with a Governmental Entity or its staff as the preparationparty to such correspondence, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of filing, or communication may reasonably deem confidential vis-à-vis the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable party.
(e) Notwithstanding anything to the preparationcontrary contained in this Agreement, filing and mailing of the Proxy Statement, and other related materials and actions, as but subject to Parent’s obligations set forth in this Section 8.025.4, (iii) Parent shall have the right to the extent required direct all matters with respect to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation any Governmental Entity consistent with its advisorsobligations hereunder, shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances, and shall take the lead in all meetings and communications with any Governmental Entity in connection with obtaining any necessary antitrust or competition clearances.
(ivf) Each party to this Agreement agrees to cooperate in obtaining any other consents and approvals that may be required in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance connection with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date transactions contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencethis Agreement.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective effective, as promptly as reasonably practicable practicable, the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions to the Closings set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to solicit proxies in connection with the CPUH Stockholder Approval, (iii) using reasonable best efforts to obtain the PIPE Investments Financing on the terms and subject to the conditions set forth in the Subscription Agreements, the Revenue Interest Financing, and the Fortress Financing on the terms set forth in the applicable agreements made available to CPUH and (iv) the Company taking, or causing to be taken, all actions necessary or advisable to cause all Related Party Contracts and accounts set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated or settled, effective as contemplated by Section 8.04of the Intermediate Merger Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Intermediate Merger Effective Time, the Surviving Corporation)), and obtaining evidence reasonably satisfactory to CPUH that such agreements and accounts have been terminated or settled, effective prior to the Intermediate Merger Closing. Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement and the Transaction AgreementsAncillary Documents. The Company shall pay any filing fees required in connection with obtaining such Consents of Governmental Entities (including that the Company shall pay the HSR Act filing fee (the “HSR Fee”)); provided that, subject to Section 8.6, each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business Days) following the Original Agreement Date date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror CPUH shall promptly inform the Company of any communication between Acquirorany CPUH Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror CPUH of any communication between either Companythe Company or any of its Affiliates, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of CPUH and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or facilities, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of CPUH’s and the other Parties’ Company’s prior written consent. .
(b) During the Interim Period, Acquirorand unless prohibited by applicable Law, the CPUH Parties, on the one hand, and the CompanyCompany and Pubco, on the other hand, shall give counsel for the Company (in the case of Acquirorany CPUH Party) or Acquiror CPUH (in the case of the Company), Company and Pubco) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany CPUH Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either the Company or Acquirorand Pubco, the opportunity to attend and participate CPUH in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Allurion Technologies Holdings, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of DSAQ and PubCo shall, and, DSAQ shall cause its Affiliates, and PubCo shall cause its Subsidiaries to, (i) use reasonable best efforts to assemble, prepare and file notifications or any information (and, as needed, to supplement such notifications or information) as may be reasonably necessary to obtain as promptly as reasonably practicable all governmental and regulatory consents required to be obtained in connection with the Parties shall Transactions, and, in the case of any notifications to be filed under the HSR Act, to submit such notifications no later than twenty (20) Business Days after the date of this Agreement, (ii) use their respective reasonable best efforts to deliver the notices to, and/or obtain the consents of, the third parties set forth on Section 7.02(a) of the Blade Group Disclosure Schedules, in each case as set forth therein, in connection with the Transactions, (iii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (Transactions, including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality all material approvals of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities that any of DSAQ, the Principal Shareholders, the Blade Group or other Persons necessary their respective Affiliates are required to obtain in order to consummate the Transactions Transactions; provided, that in no event shall DSAQ or the Blade Group or any of their respective Affiliates be obligated to bear any expense, pay any fee (except as set forth in the last sentence of Section 7.02(b), and excluding any expenses or fees payable to the transactions contemplated by SEC in connection with the Transaction Agreements. Transactions, including the Registration Statement/Proxy Statement) or grant any concession in connection with obtaining any such approvals, and that each Party shall bear its out-of-pocket costs and expenses in connection with obtaining any such approvals and (iv) take such other action as may reasonably be necessary or as any other Party may reasonably request to satisfy the conditions of the other Parties set forth in Article VIII or otherwise to comply with this Agreement.
(b) Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company other Parties of any substantive communication between Acquiror, on the one hand, itself and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Authority regarding any of the Transactions or any Transaction AgreementTransactions. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Actno Party shall, and (y) each Party and shall cause its respective Affiliates shall not extend any waiting periodto, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in In connection with the HSR Act when due and obtaining any such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreementapprovals, nothing in this Section 8.01 or any other provision of this Agreement 7.02 obligates any Party or any of its Affiliates to agree to, and PubCo, with respect to the Blade Group, shall not without DSAQ’s written consent, agree with any Governmental Authority to (i) sell, license or otherwise dispose of, or hold separate and or agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of any member of the Company Blade Group or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or DSAQ and any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligationsobligations of any Party or any of its Affiliates, (iii) amend, assign or terminate existing licenses or other Contracts of any Party or any of its Affiliates or (iv) enter into new licenses or other Contracts in respect of any Party or any of its Affiliates. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the such other Parties’ prior written consentconsent (not to be unreasonably withheld, conditioned or delayed). During Except to the Interim Periodextent otherwise constituting a Blade Group Transaction Expense hereunder, Acquirorwhether or not the Transactions are consummated, on PubCo and DSAQ shall each be responsible for 50% of the one handfiling fees paid or payable to any Governmental Authority (including filing fees under the HSR Act or any other applicable Law) in connection with the Transactions other than filing fees under the HSR Act for the acquisitions by PIPE Investors for the PIPE Investment (which shall be the sole responsibility of the PIPE Investors, as appropriate).
(c) From and after the Companydate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, on the other hand, Parties shall give legal counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), other Parties a reasonable opportunity to review in advance, and shall consider in good faith the views of the other in connection with, any proposed material written communication to any Governmental Authority relating to the Transactions or the Transaction AgreementsTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person person, videoconference, or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance andunless, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate it consults with the other Parties in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each otheradvance. Notwithstanding the foregoing, Acquiror shall, subject any materials shared may be redacted before being provided to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then other Parties (i) Acquiror shall call a special meeting to remove references concerning the valuation of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”)Blade Group, (ii) Acquiror as necessary to comply with contractual arrangements and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval avoid disclosure of the Extension Proposal in a manner that is expected other competitively sensitive information or to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on address reasonable privilege or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceconfidentiality concerns.
Appears in 1 contract
Samples: Business Combination Agreement (Direct Selling Acquisition Corp.)
Efforts to Consummate. (a) 11.2.1. Subject to the terms and conditions hereinherein provided, each of the Parties shall will use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions Closing and transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 12 and, to execute and (ii) using reasonable best efforts deliver any ancillary agreement or document when required pursuant to obtain PIPE Investments as contemplated by Section 8.04this Agreement). Without limiting the generality of the foregoing, each of the Parties shall will use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents or approvals of any Governmental Authorities Authority or other Persons necessary Third Party necessary, proper or advisable to consummate the Transactions Closing and the transactions contemplated by this Agreement. LANTHEUS, on the Transaction Agreementsone hand, and POINT, on the other hand, will pay fifty percent (50%) of the HSR Act filing fee; provided, further, that each Party will bear its out-of-pocket costs and expenses in connection with the preparation of any such consents or approvals.
11.2.2. Each Party shall will (Ai) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 Business Daysfourteen (14) days following the Original Agreement Date Execution Date) and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall LANTHEUS will promptly inform the Company POINT of any communication between AcquirorXXXXXXXX, on the one hand, and any Governmental Authority, on the other hand, and the Company shall POINT will promptly inform Acquiror XXXXXXXX of any communication between either CompanyPOINT, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction transactions contemplated by this Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall will not withdraw its filing under the HSR Act, extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority to delay the consummation of, or not to consummate consummate, the Transactionstransactions contemplated hereby, except with the prior written consent of the other PartiesParty.
11.2.3. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 11.2 or any other provision of otherwise in this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets, lines of business or assets facilities of the Company any such Party or any of their respective Subsidiaries its Affiliates or any entity entity, facility, line of business or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall will agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ Party’s prior written consent.
11.2.4. During From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, AcquirorLANTHEUS, on the one hand, and the CompanyPOINT, on the other hand, shall will give legal counsel for the Company POINT (in the case of AcquirorLANTHEUS) or Acquiror LANTHEUS (in the case of the CompanyPOINT), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written substantive communication to any Governmental Authority relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, gives such other Party the opportunity to attend and participate in such meeting or discussion.
(b) 11.2.5. Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 11.2 conflicts with any other covenant or agreement in this Agreement Article 11 that is intended to specifically address any subject matter, then such other covenant or agreement shall will govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) preparation and agreement upon the form of each of (A) the matters to be considered for the Company Stockholder Approval (including the Incentive Equity Plan), (B) the Lockup Agreement, (C) the Registration Rights Agreement and (D) the Certificate of Merger , (ii) the satisfaction of the closing conditions set forth in Article IX and (iiiii) using reasonable best efforts to obtain consummating the PIPE Investments as contemplated by Investment in accordance with Section 8.048.07). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to: (A) obtain any Consents from, or file any notices to, any Governmental Authorities or other Persons necessary to change the name of the authorized permittee of any Permits held by the Company to the name of the Surviving Acquisition Entity, as necessary for the continued lawful conduct of the business of the Company after Closing, and (B) obtain, file with or deliver to, as applicable, any consents of Consents of, or notices to, any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (AI) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 ten (10) Business Days) following the Original date of this Agreement, (II) submit notifications (including draft notifications, as applicable), filings, notices and other required submissions pursuant to the Competition Laws or Investment Screening Laws of the other jurisdictions set forth on Schedule 8.01(a) with respect to the transactions contemplated by this Agreement Date as promptly as practicable following the date of this Agreement (and any filing fees associated with any such filings shall be paid by Acquiror) and (BIII) respond as promptly as reasonably practicable to any requests by any Governmental Authority (including any Competition Authorities) for additional information and documentary material that may be requested pursuant to any Competition Laws (including the HSR Act) or Investment Screening Laws. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, and the Company shall promptly inform Acquiror of any communication between either Companythe Company Parties, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or any other Competition Laws or Investment Screening Laws or enter into any agreement with any Governmental Authority not to consummate the TransactionsTransactions or by the other Transaction Agreements, except with the prior written consent of Acquiror and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Company.
(ib) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority (including any Competition Authorities) relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and Acquiror, the Company, or, in the case of the Company, Acquiror in advance and, to the extent not prohibited by such Governmental Competition Authority, gives, in the case of Acquiror and Acquiror, the Company, or, in the case of either Company or the Company, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) other than for de minimis costs and expenses, in no event shall Acquiror Acquiror, Merger Sub, the Company or the Company Company’s Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions; provided that any fees relating to any filings under Competition Laws (including HSR) or Investment Screening Laws shall be borne by Acquiror.
(cd) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, Acquiror or any of its respective Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the CompanyCompany or its Subsidiaries). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall either of the Company or the Acquiror (or any of their respective Representatives) settle or compromise any Transaction Litigation without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions provided herein, each of the Parties shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof the Transactions, including (i) preparing and filing with the satisfaction of appropriate Governmental Entities as reasonably promptly as practicable all applications, notices, petitions, filings, ruling requests, and other documents necessary to consummate the closing conditions set forth Transactions and to obtain as reasonably promptly as practicable all consents and clearances necessary to be obtained from any Governmental Entities in Article IX order to consummate the Transactions (collectively, the “Governmental Approvals”) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of Parent and the Parties shall use reasonable best efforts to obtain, file with or deliver Company agrees to, as applicablesoon as reasonably practicable following the date of this Agreement and at a mutually agreed upon time, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable make all other filings that are required to any requests by any Governmental Authority for additional information and documentary material that may be requested made in order to consummate the Transactions pursuant to the HSR Actother applicable Laws. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Each Party and its respective Affiliates shall further agrees that it will not extend any waiting period, review period or comparable period under the HSR Act or other applicable Law, or enter into any agreement with the FTC, the DOJ, any other Governmental Authority Entity, or any other party to delay or not to consummate the Transactions, except with the prior written consent of the other PartiesParty. The Company Each Party further agrees that it will pay supply as promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Law and use its reasonable best efforts to take all filing fees in other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Law as soon as possible, including promptly complying with any “second request” for information or similar request from the FTC, DOJ, or other Governmental Entity.
(b) In connection with the actions referenced in Section 5.3(a) to obtain all Governmental Approvals for the Transactions under the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision Laws, each of this Agreement obligates any Party or any of its Affiliates to agree to Parent and the Company shall (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures cooperate in the foregoing sentence all respects with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection withwith any communication, filing or submission and in connection with any proposed written investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other Party and/or its counsel promptly informed of any communication to received by such Party from, or given by such Party to, the FTC, the DOJ or any other U.S. or other Governmental Authority relating Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions; (iii) to the Transactions or the Transaction Agreements. Each extent practicable, consult with each other in advance of the Parties agrees not to participate in any substantive scheduled meeting or discussionconference with the FTC, either the DOJ or any other Governmental Entity or, in person or connection with any proceeding by telephonea private party, with any Governmental Authority in connection with the Transactions unless it consults withother Person, in the case of Acquiror and the Company, in advance and, to the extent not prohibited permitted by such the FTC, the DOJ or any other Governmental AuthorityEntity or other Person, gives, in give the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party and/or its counsel the opportunity to attend and participate in such meeting meetings and conferences; and (iv) permit the other Party and/or its counsel to review in advance any submission, filing or discussion.
communication (band documents submitted therewith) Notwithstanding anything intended to be given by it to the contrary FTC, the DOJ or any other Governmental Entity; provided that Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 5.3(b) as restricted information to be shared only with such Persons or its outside counsel and subject to such terms as provided in the Confidentiality Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During In furtherance and not in limitation of the Interim Periodcovenants of the Parties contained in Section 5.3(a) and Section 5.3(b), Acquirorwith regard to any Governmental Entity that regulates administers or enforces any Laws related to antitrust, on competition, fair trade or similar matters, neither the one handCompany nor any of its Subsidiaries or affiliates shall, and without Parent’s written consent, in Parent’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter their businesses or commercial practices in any way, or otherwise take or commit to take any action that limits Parent’s freedom of action with respect to, or Parent’s ability to retain any of the Companybusinesses, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands product lines or other shareholder proceedings assets (including derivative claimswhether tangible or intangible) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelyof, the “Transaction Litigation”) commenced against, in the case of Acquiror Company or any of its Representatives Subsidiaries or affiliates (in their capacity as a representative “Company Assets”) or otherwise receive the full benefits of Acquiror) orthis Agreement Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall the case Parent be obligated to (i) litigate against a Governmental Entity or (ii) divest or hold separate, to enter into any licensing or similar arrangement, or take any other action with respect to, any assets (whether tangible or intangible) or operations relating to any business of the Company, Parent or any respective Representatives of its Subsidiaries or affiliates or any of the Company (Assets, provided, however, that, to the extent any actions described in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, clause (ii) give are necessary to obtain regulatory clearance, Parent agrees to divest or take other appropriate actions related to the other Scheduled Assets.
(d) Subject to Parent’s undertakings pursuant to this Section 5.3, the opportunity to, at its own cost final determination of the appropriate strategy and expense, participate in the defense, settlement and compromise course of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice action with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth actions contemplated in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigationthis Section 5.3 shall be made by Parent; provided, however, that Parent shall keep the Company apprised of its strategy and course of action and shall give the Company reasonable opportunity to comment on such strategy and course of action, and Parent shall consider such comments (that are provided in no event a timely manner) in good faith. Parent shall Acquiror settle be permitted to take the lead in all joint meetings and communications with any Governmental Entity in connection with obtaining any necessary Governmental Approvals pursuant to this Section 5.3. Parent agrees that, at any time in an investigation, if a Governmental Entity suggests or compromise any Transaction Litigation without the prior written consent proffers a settlement of the Company investigation to permit the Transactions to close, Parent shall promptly (not to be unreasonably withheld, conditioned or delayed). Without limiting and in any event within one (1) Business Day) communicate the generality terms of the foregoingoffer to the Company. Parent, in no event its sole discretion, may accept or reject any settlement of the investigation proposed by any Governmental Entity, provided that Parent complies with its obligations under this Section 5.3.
(e) Subject to the conditions outlined in this Section 5.3 or as otherwise required by applicable Law, the Parties shall the Company or its Subsidiaries or any not, and shall cause each of their respective Subsidiaries not to, take (or permit their respective Representatives settle to take) any action or compromise fail to take any Transaction Litigation without Acquiror’s prior written consent (not to action that is intended to, or would reasonably be unreasonably withheldexpected to, contained individually or delayed).
(d) If Acquiror and in the Company determine aggregate, result in good faith that it is probable that any of the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior conditions to the Acquiror Termination Date Merger not being satisfied or prevent, materially delay, or materially impede the ability of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required Company, Parent or Merger Sub to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceMerger.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinof this Agreement, each Seller shall use its
(i) defending against any Proceeding challenging this Agreement or the consummation of the Parties transactions contemplated hereby and (ii) seeking to have any preliminary injunction, temporary restraining order, stay or other legal restraint or prohibition entered or imposed by any court or other Governmental Authority that is not yet final and non-appealable vacated or reversed; provided, however, that (A) Seller shall not be required to waive any of the conditions set forth in Section 2.2 and (B) none of Seller, the Company or any CHUHC Subsidiary shall be required to make any monetary expenditure, commence or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any third party.
(b) In furtherance and not in limitation of the foregoing, Seller shall use their respective its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable under applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement, and to comply as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts with all legal requirements which may be imposed on it with respect to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions this Agreement and the transactions contemplated hereby by any Governmental Authority with regulatory jurisdiction over enforcement of any applicable Law (which actions shall include furnishing all information required by applicable Law in connection with approvals of or filings with any Governmental Authority), including the Transaction Agreements. Each Party shall following:
(Ai) make all filing, or causing to be filed, as promptly as practicable, but in no event later than five Business Days following the execution and delivery of this Agreement, any required filings pursuant to notification and report forms under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice;
(ii) providing for review and approval, as promptly as practicable, but in no event later than five Business Days following the execution and delivery of this Agreement, all necessary applications and filings in connection with the Required Actions, each of which shall contain complete information and all materials required by the applicable Governmental Authority; providing all comments on the applications and filings required in connection with the Required Actions within five Business Days after receiving such applications and filings; and promptly filing such applications and filings with the appropriate Governmental Authority after making such changes required by such comments within three Business Days after receiving such comments;
(iii) obtaining any consent, authorization, order or approval of, or any exemption by, any Governmental Authority required to be obtained or made by Seller, Purchaser or any of their respective Affiliates in connection with the transactions contemplated by this Agreement;
(iv) securing clearance under all applicable Antitrust Law (including the expiration or termination of any applicable waiting period under the HSR Act); provided further that Seller shall take all actions necessary to ensure that no Governmental Antitrust Authority (A) with the authority to clear, authorize or otherwise approve the consummation of the transactions contemplated by this Agreement fails to do so or (B) enters any decision, order, decree, ruling or injunction restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement, including agreeing to any structural or conduct relief with respect to the Transactions promptly assets of Purchaser or any of its Affiliates or of the Company and the CHUHC Subsidiaries (including executing agreements and submitting to judicial or administrative orders to hold separate and divest any such assets), or at the request of Seller, litigating any such matter; provided, however, that nothing in this Section shall require Seller, the Company or the CHUHC Subsidiaries to make any monetary expenditure, commence or participate in any event within 10 Business Dayslitigation or offer or grant any accommodation (financial or otherwise) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional third party.
(c) Seller shall furnish to Purchaser such necessary information and documentary material that reasonable assistance as the other may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company request in connection with its preparation of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions filing or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions submission that is necessary under the HSR Act, the Required Actions or any other Law. Seller shall keep Purchaser apprised of the status of any communications with, and (y) each Party any inquiries or requests for additional information from, the Governmental Antitrust Authorities and other Governmental Authorities, and shall comply as promptly as practicable with any such inquiry or request. Seller agrees to instruct its counsel to cooperate with Purchaser's counsel and use their respective Affiliates shall not extend best efforts to facilitate and expedite the identification and resolution of any waiting period, review period or comparable period issues arising under the HSR Act Act, the Required Actions and any other applicable Law at the earliest practicable dates. Said best efforts and cooperation shall include counsel’s undertaking (to the extent permitted by applicable Law and in each case regarding the transactions contemplated by this Agreement and without waiving attorney-client, work-product or enter into any agreement other applicable privilege) to (i) furnish to each other’s counsel such reasonably necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act, the Required Actions and any other applicable Law, and (ii) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written or oral communications explaining or defending this Agreement or any of the transactions contemplated hereby, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Authority or other Person. Neither Seller nor any of its Affiliates or Representatives shall independently contact any Governmental Authority or participate in any meeting or discussion (or any other communication by any means) with any Governmental Authority not in respect of any such filings, applications, investigation or other inquiry without giving, the other party prior reasonable notice of the meeting or discussion, the opportunity to consummate confer with each other regarding appropriate contacts with and responses to personnel of said Governmental Authority, the Transactionsopportunity to review and comment on the contents of any representations (oral or otherwise) expected to be communicated at the meeting or discussion, and, to the extent permitted by the relevant Government Authority, the opportunity to attend and participate at the meeting or discussion. Seller shall pay for all costs and expenses incurred by Seller or any of its Affiliates (including the Company and the CHUHC Subsidiaries) to comply with this Section.
(d) During the period from the date hereof and continuing until the earlier of the Closing and the termination of this Agreement in accordance with its terms, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees Purchaser (which consent shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, Seller and its Affiliates shall not do anything, including entering into any transaction (or making any antitrust or competition law filing in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”connection with such transaction), then (i) Acquiror shall call a special meeting of its stockholders that could reasonably be expected to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to prevent or delay any filings or approvals required under the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadlineHSR Act, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and Required Actions or other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to Each Party shall, and shall cause its Affiliates to, prepare, as soon as is practical following the terms and conditions herein, each date of the Parties shall use their respective reasonable best efforts to take, or cause to be takenthis Agreement, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth filings in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file connection with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by this Agreement under the Transaction AgreementsHSR Act or any other Laws, including Competition Laws and Required Regulatory Approvals relating to clinical laboratory Licenses, prior to the Closing Date, including as set forth on Section 6.4 of the Company Disclosure Letter, to consummate the transactions contemplated by this Agreement, promptly supply the other Party with any information which may be reasonably required in order to prepare such filings, and coordinate, cooperate and consult with the other Party in making such filings. Each Party shall, and shall (A) make all cause its Affiliates to, submit the required filings as soon as practicable, but, with respect to filings under the HSR Act, in no event later than ten (10) Business Days after the date hereof; provided that, in the event there are changes to the notification form required pursuant to the HSR Act with respect that take effect after the date hereof, then the Parties shall mutually agree on an appropriate deadline for making the filings required pursuant to the Transactions promptly HSR Act, which may exceed ten (and in any event within 10 10) Business Days) Days following the Original Agreement Date and (B) date of this Agreement. Each Party shall respond as promptly as reasonably practicable to any requests by any Governmental Authority Entities for any additional information and or documentary material that may be requested pursuant with respect to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one handtransactions contemplated by this Agreement, and any Governmental Authoritycoordinate, on cooperate and consult with the other hand, and the Company shall promptly inform Acquiror of Party in making any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreementsuch responses. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActSeller, Buyer and (y) each Party and its their respective Affiliates shall not pull and refile any HSR filing, extend any waiting periodwaiting, review period or comparable period under the HSR Act or other Competition Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement for any period of time, except with the prior written consent of the other PartiesParty, such consent not to be unreasonably withheld, conditioned or delay, and (ii) Buyer shall use reasonable best efforts to take all actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to expeditiously consummate the transactions contemplated by this Agreement, including (A) selling, licensing or otherwise disposing of, or proposing, negotiating, committing to and effecting by consent decree, hold separate orders, or otherwise, and agreeing to sell, license, transfer or otherwise dispose of, any entities, assets or facilities of any Group Company after the Closing or any entity, facility or asset of Buyer or its Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party), (C) amending, assigning or terminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements and (D) the entry into such other arrangements, as are necessary in order to effect the dissolution of any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of preventing the consummation of the transactions contemplated by this Agreement prior to the Termination Date; provided, notwithstanding anything contrary in this Agreement, that such action described in this Section 6.4(a)(ii) does not have a material adverse effect on Buyer or the Group Companies or Buyer’s ability to receive the reasonably anticipated benefits of the transactions contemplated by this Agreement. The Company will pay all All filing fees incurred in connection with the HSR Act when due and such fees any other Competition Laws in connection with the transactions contemplated by this Agreement shall be deemed 50% Company Transaction Expenses borne by Buyer.
(b) Each of Seller and 50% Acquiror Transaction Expenses. Notwithstanding anything Buyer shall (i) promptly notify the other Party of any material or substantive written or oral communication made to or received by either Seller, Buyer or the contrary in Group Companies, as the case may be, any Governmental Entity regarding any of the transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminatesubject to applicable Law, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of permit the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advanceadvance any proposed written communication (including any proposed analyses, briefs, correspondence, memoranda, notifications, presentations, proposals, submissions, white papers or documents submitted therewith) to any such Governmental Entity and consider in good faith the views of other Party’s reasonable comments, (iii) give the other Party prior prompt notice of any in connection withperson meeting, any proposed written video conference or other communication to any with a Governmental Authority relating to the Transactions Entity and not participate or the Transaction Agreements. Each of the Parties agrees not agree to participate in any substantive meeting or discussion, either in person or by telephone, discussion with any such Governmental Authority Entity in connection with respect of any filing, investigation or inquiry concerning this Agreement or the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party the opportunity to attend and participate in such meeting or discussion.
attend, (biv) Notwithstanding anything furnish to the contrary in the Agreementother Party copies of all correspondence, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern filings and control solely to the extent of such conflict written communications between them and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquirortheir Affiliates and their respective Representatives, on the one hand, and the Companyany such Governmental Entity or its respective staff, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating with respect to this Agreement, any Transaction Agreements or any matters relating thereto Agreement and the transactions contemplated by this Agreement (collectively, the “Transaction Litigation”) commenced againstand, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) ororal communications, in advise the case other Party of the Companycontents thereof); provided that any material or information required to be provided by one Party to the other pursuant to this Section 6.4 may be (A) redacted as necessary (1) to comply with contractual arrangements, (2) to preserve legal privilege, or (3) to remove references concerning the valuation of Seller, Buyer or the Group Companies, and (B) designated as “outside counsel only,” in which case such information and materials shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to any respective other persons, including other Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation recipient without the prior written consent of the Company providing Party or its legal counsel.
(not c) Without limiting any Party’s rights under Section 8.1 of this Agreement, in the event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced questioning the validity or legality of the transactions contemplated hereby, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement or seeking damages in connection therewith, the Parties agree to cooperate and use reasonable best efforts to defend against such claim, action, suit, investigation or other proceeding and, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be unreasonably withheldentered or issued, conditioned in any proceeding or delayed). Without limiting the generality inquiry of any kind that would make consummation of the foregoingtransactions contemplated by this Agreement in accordance with its terms unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, take any and all steps (including the appeal thereof and the posting of a bond) reasonably necessary or appropriate to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement, and to cooperate reasonably regarding any other impediment to the consummation of the transactions contemplated by this Agreement.
(d) Each Party agrees to cooperate in no event shall obtaining any other consents and approvals of third parties that may be required in connection with the transactions contemplated by this Agreement pursuant to the Material Contracts or Real Property Leases set forth on Section 3.13(a) of the Company Disclosure Letter and Section 3.9(a) of the Company Disclosure Letter, respectively. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or its Subsidiaries be construed to obligate any Group Company to make, or to cause to be made, any payment to any third party in order to obtain the consent or approval of such third party under any contract or otherwise. Notwithstanding anything to the contrary in this Agreement, Xxxxx agrees that none of the Group Companies or any of their respective Representatives settle Affiliates shall have any liability whatsoever to Buyer arising out of or compromise any Transaction Litigation without Acquiror’s prior written consent (not relating to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts failure to obtain approval from any such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparationno representation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit warranty or covenant herein shall be funded by breached or deemed breached, no condition shall be deemed not satisfied and no termination right shall be deemed triggered as a loan from the Sponsor to Acquiror) necessary to obtain approval result of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencefailure.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof and in any event no later than the End Date the transactions contemplated by this Agreement, including (i) preparing as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX "Governmental Approvals") and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required an appropriate and complete filings in respect of the Governmental Approval(s) listed on Section 6.4(a) of the Company Disclosure Schedules pursuant to the HSR Act applicable Regulatory Law with respect to the Transactions promptly (and transactions contemplated hereby, in any event each case within 10 ten Business Days) Days following the Original Agreement Date and date of this Agreement, (B) respond make all other filings pursuant to other Regulatory Laws that are necessary, proper, or advisable to permit consummation of the transactions contemplated hereby as reasonably promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Actpracticable, and (yC) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of Parent. Each of Parent and the Company shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to any Regulatory Law and use its reasonable best efforts to take all other Parties. The actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under any Regulatory Law as soon as possible and in any event no later than the End Date.
(b) Each of Parent and the Company will pay all filing fees shall, in connection with the HSR Act when due actions referenced in Section 6.4(a) to obtain all Governmental Approvals under any Regulatory Laws, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed of any communication received by such fees party from, or given by such party to, the applicable Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) to the extent practicable, consult with each other in advance of any meeting or conference with any Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by such Governmental Entity or other Person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to such Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the businesses of the Company and the Company Subsidiaries. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.4(b) as "Counsel Only Material." Such materials and the information contained therein shall be deemed 50% given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in Section 6.4(a) and Section 6.4(b), Parent and the Company Transaction Expenses shall use their respective reasonable best efforts to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date, including proposing, negotiating, committing to and 50% Acquiror Transaction Expenses. Notwithstanding effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of the Company or the Company Subsidiaries, and (ii) otherwise taking or committing to take actions that after the Closing may limit the Company's and the Company Subsidiaries' freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines or assets of the Company and/or the Company Subsidiaries; provided, however, any action contemplated by clauses (i) and (ii) is conditioned upon the consummation of the transactions contemplated by this Agreement; provided, further, that notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision none of this Agreement obligates any Party Parent or any of its Affiliates (including Merger Sub) shall be required to and, without the prior written consent of Parent, neither the Company nor any Company Subsidiary may, (A) litigate with or otherwise participate in any legal proceeding with any Governmental Entity in connection with obtaining any consent or approval required in connection with this Agreement or to consummate the transactions contemplated by this Agreement or (B) accept or agree to (i) sellany limitation on ownership or operations, license or otherwise to dispose of, of or hold separate and agree to sell, license or otherwise dispose of, any entities portion of the business or assets of Parent, the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, or otherwise undertake any action or enter into any agreement pursuant to this Section 6.4.
(d) Parent shall have, except where prohibited by applicable Law, responsibility for determining the strategy for dealing with each of the other Parties’ prior written consent. During the Interim Periodany Governmental Entity, Acquirorregarding all Regulatory Laws relating to antitrust matters; provided, on the one handthat, and the Company, on the other hand, Parent shall give counsel for consult with the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, manner and consider in good faith the views and comments of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Company in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionforegoing.
(be) Notwithstanding anything in Section 6.4, Parent shall use commercially reasonable efforts to file, no later than fifteen Business Days after the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern execution and control solely to the extent delivery of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, a complete notice of investment in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case accordance with Section 12 of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other Investment Canada Act in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each othertransactions contemplated by this Agreement. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the The Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that Subsidiaries shall provide such relevant information and documentation to assist with such notice of investment as Parent may consider necessary or desirable to comply with the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror Investment Canada Act. Parent and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company Subsidiaries shall cooperate in good faith to request and effectuate further amendments furnish promptly to the Acquiror Organizational Documents to provide for requesting authority any additional extensions of the deadline applicable information reasonably requested pursuant to the consummation Investment Canada Act in connection with such notice of a business combination in accordance with the foregoing sentenceinvestment.
Appears in 1 contract
Samples: Merger Agreement (Counterpath Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain PIPE Investments the Financing on the terms and subject to the conditions set forth in the Subscription Agreements and (iii) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including the other Group Companies and, from and after the Closing Date, Prospector)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities or other Persons necessary necessary, proper or advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The Company shall bear the costs incurred in connection with obtaining such Consents; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (Ai) make all any appropriate filings or take, or cause to be taken, any required filings actions pursuant to the HSR Act any Foreign Antitrust Laws with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 Business Days) following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Actunder any Foreign Antitrust Laws. Acquiror Prospector shall promptly inform the Company of any substantive communication between AcquirorProspector, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror Prospector of any substantive communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act any applicable Foreign Antitrust Laws or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Prospector and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of Prospector’s and the other Parties’ Company’s prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Arrangement Effective Time or termination of this Agreement in accordance with its terms, AcquirorProspector, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorProspector) or Acquiror Prospector (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written substantive communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Any materials exchanged in connection with this Section 5.2 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel (including in-house counsel) of any Party, and to remove competitively sensitive material; provided, that such Party may, as it deems advisable and necessary, designate any materials provided to under this Section 5.2 as “outside counsel only.” Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the CompanyProspector, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, Prospector in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives, in the case of Prospector, the Company, or, in the case of the Company, Prospector, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(cd) During From and after the Interim Perioddate of this Agreement until the earlier of the Arrangement Effective Time or termination of this Agreement in accordance with its terms, AcquirorProspector, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings Proceedings (including derivative claimsclaims and Arrangement Dissent Rights) relating to this Agreement, any Transaction Agreements Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror Prospector, Prospector or any of its Representatives (in their capacity as a representative of AcquirorProspector) or, in the case of the Company, any Group Company or any of their respective Representatives of the Company (in their capacity as a representative of the a Group Company). Acquiror Subject and in addition to Section 2.1(b)(ii) with respect to Arrangement Dissent Rights, Prospector and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to other and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle (v) refrain from settling or compromise compromising any Transaction Litigation without the prior written consent of, in the case of the Group Companies, Prospector and in the case of Prospector, the Company (such consent not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Prospector Capital Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Company and Driven shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and 6, (ii) using reasonable best efforts delivery at least five Business Days prior to obtain PIPE Investments the Effective Date of the redemption notice, and any instruments in connection therewith, with respect to the right of Shine to elect to redeem all Shine Superpreference Shares that are outstanding as contemplated by Section 8.04of immediately prior to the Effective Time pursuant to, and in accordance with the terms of, the articles of association of Shine and the other Governing Documents of Shine and (iii) consummation of the ICW Restructuring). Without limiting the generality Each of the foregoing, each of the Parties Company and Driven shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreementsthis Agreement. Each Party party hereto shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act and any applicable foreign antitrust or competition laws with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 three (3) Business DaysDays in connection with any filings required pursuant to the HSR Act) following after the Original date of this Agreement Date (and (B) respond such filing shall request “early termination” of any applicable waiting periods), and shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActAct and any foreign antitrust or competition laws. Acquiror shall promptly inform Each of the Company of any communication between Acquiror, on the one hand, and Driven agrees to promptly take all actions that are necessary or reasonably advisable or as may be required by any Governmental AuthorityEntity to expeditiously consummate the transactions contemplated by this Agreement; provided, on however, that, notwithstanding anything in this Agreement to the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other handcontrary, in either case, regarding no event shall any party hereto be required to take any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to following actions: (i) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company facilities, (ii) terminating, amending or assigning existing relationships or contractual rights or obligations or (iii) amending, assigning or terminating existing licenses or other agreements or entering into such new licenses or other agreements.
(b) Nothing in this Agreement shall require any Driven Group Member or any Company Group Member or permit any Company Group Member (without the prior consent of their respective Subsidiaries Driven) to litigate with any Governmental Entity or any entity other Person regarding the transactions contemplated hereby.
(c) Each party hereto shall promptly notify the other parties hereto of any communication it or asset its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and, to the extent permitted by law, permit the other parties hereto to review in advance any proposed communication by it to any Governmental Entity. No party hereto shall agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other parties hereto in advance or is otherwise required by law and, to the extent permitted by such Party Governmental Entity, gives the other parties hereto the opportunity to attend and participate at such meeting. Each party hereto will provide the other parties hereto with copies of all material correspondence, filings or communications between it or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorrepresentatives, on the one hand, and the Companyany Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement. In addition, subject to applicable law, the parties hereto shall give counsel for the Company (consult and cooperate with each other in the case of Acquiror) or Acquiror (advance in the case of the Company)connection with any analyses, a reasonable opportunity to review in advanceappearances, presentations, memoranda, briefs, arguments, and consider in good faith the views of the other in connection with, any proposed written communication proposals made or submitted to any Governmental Authority relating to Entity regarding the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or transactions contemplated by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant by or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms on behalf of any Contract to which the Company or its Subsidiaries is a partyparty hereto.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use commercially reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between Acquirorany SPAC Party, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting The Company and SPAC will each pay 50% of all filing fees in connection with the foregoingHSR Act or other materials contemplated by this Section 8.01(a).
(b) Each Party shall use (i) its respective commercially reasonable efforts to make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the date of this Agreement and (ii) shall respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Notwithstanding anything to the contrary in this Section 8.01, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActAct (to the extent early termination is then available), and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to .
(ic) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorthe SPAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany SPAC Party) or Acquiror SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and SPAC, the Company, or, in the case of the Company, SPAC, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and SPAC, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion.
(bd) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror the SPAC Parties or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(ce) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, any of the SPAC Parties or any of its their respective Representatives (in their capacity as a representative of Acquirora SPAC Party) or, in the case of the Company, Company or any of its Subsidiaries, any of their respective Representatives of the Company (in their capacity as a representative of a member of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in In no event shall Acquiror the Company or SPAC settle or compromise any Transaction Litigation without the prior written consent of SPAC or the Company Company, respectively (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX Article 6 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04delivery of such Ancillary Document). Without limiting the generality of Notwithstanding the foregoing, each of the Parties Party shall use reasonable best efforts to obtainobtain Consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents.
(b) Each Party shall (i) make, file with or deliver tocause to be made, an appropriate filing or take, or cause to be taken, any required actions, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 ten Business Days) following after the Original Agreement Date date of this Agreement, (ii) request for early termination of the waiting period thereunder and (Biii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror The Company shall pay all filing fees relating to filings under the HSR Act concerning the transaction contemplated hereby. Each Party shall promptly inform the Company other Parties of any communication between Acquiror, on the one hand, such Party and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Entity regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Acquiror and the other PartiesCompany. The Company will pay Acquiror agrees to take all filing fees actions that are required by any Governmental Entity in connection with the filing pursuant to the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to expeditiously consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates including to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall , (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements, provided that any such action: (x) is conditioned upon the consummation of the transactions contemplated by this Agreement and (y) does not require Acquiror to agree to take, any action if such action would have, or would be reasonably expected to have, a Company Material Adverse Effect.
(c) From and after the date of this Agreement until the earlier of the measures Closing or termination of this Agreement in accordance with its terms, the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Acquiror Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Acquiror Party) or Acquiror and its counsel (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of any Acquiror and Party, the Company, or, in the case of the Company, Acquiror, in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of any Acquiror and Party, the Company, or, in the case of either Company or the Company, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(bd) In furtherance of, and without limiting the Parties’ obligations pursuant to, Section 5.2(a), the Company shall use commercially reasonable efforts to obtain, prior to the Closing, written consents, in form and substance reasonably acceptable to Acquiror, from each of the counterparties to the agreements set forth on Section 5.2(d) of the Company Schedules; provided that nothing herein shall require a Party or any of its respective Affiliates to expend money, commence any Proceeding or offer or grant any accommodation (financial or otherwise) to any third party. All costs incurred in connection with obtaining such consents shall be borne by the Company.
(e) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 Section 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX ARTICLE VIII and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using commercially reasonable best efforts to obtain the PIPE Investments as contemplated Financing on the terms and subject to the conditions set forth in the PIPE Subscription Agreements and (iii) amending the Plan of Arrangement and any other Ancillary Document to the extent necessary to implement the terms of any other definitive documentation agreed upon by Section 8.04the Parties in connection with the Exchangeable Share structure). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities or other Persons necessary necessary, proper or advisable to consummate the Transactions Transactions. The Company and SPAC shall each bear 50% of the transactions contemplated by costs incurred in connection with obtaining such Consents and any filing fees or other costs payable to a Governmental Entity in connection the Transaction Agreements. Each preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the preparation, filing or mailing of the Registration Statement / Proxy Statement (excluding legal fees); provided, however, that, subject to Section 10.6, each Party shall (A) make all required filings pursuant to bear its out-of-pocket costs and expenses in connection with the HSR Act with respect to the Transactions promptly (and preparation of any such Consents. NewCo shall submit promptly, but in any event within 10 seven (7) Business Days) following Days after the Original date of this Agreement Date the notification pursuant to Sections 11 and (B) 12 of the Investment Canada Act and each Party shall respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested requested, pursuant to the HSR Investment Canada Act. Acquiror SPAC shall promptly inform the Company of any material communication between Acquirorany SPAC Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror SPAC of any material communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions or any Transaction AgreementTransactions. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Investment Canada Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactions, except with the prior written consent of SPAC and the other Parties. The Company will pay all filing fees in connection with Company.
(b) From and after the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision date of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets until the earlier of the Company Effective Time or any termination of their respective Subsidiaries or any entity or asset of such Party or any of this Agreement in accordance with its Affiliates or any other Person or (ii) terminateterms, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other SPAC Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany SPAC Party) or Acquiror SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity specifically relating to the Transactions or the Transaction AgreementsTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Entity specifically relating to Transactions unless it consults with, in the case of Acquiror and any SPAC Party, the Company, or, in the case of the Company, SPAC in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and any SPAC Party, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion. SPAC will cause the proxy statement to be mailed to SPAC Stockholders as promptly as practicable after the Registration Statement / Proxy Statement is declared effective under the Securities Act.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 7.2 conflicts with any other covenant or agreement in this Agreement ARTICLE VII that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(cd) During Without limiting the Interim PeriodParties’ rights and obligations under Section 4.1(a), AcquirorSection 4.1(d) and Section 4.1(e), from and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, SPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings Proceedings (including derivative claimsclaims and Arrangement Dissent Rights) relating to this Agreement, any Transaction Agreements Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, any SPAC Party or any of its their respective Representatives (in their capacity as a representative of Acquirora SPAC Party) or, in the case of the Company, any Group Company or any of their respective Representatives of the Company (in their capacity as a representative of the a Group Company). Acquiror Subject and in addition to Section 4.1(b)(ii) with respect to Arrangement Dissent Rights, SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to other and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle (v) refrain from settling or compromise compromising any Transaction Litigation without the prior written consent of SPAC or the Company Company, as applicable (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and delivery such Ancillary Document when required pursuant to this Agreement, and (ii) using reasonable best efforts to obtain the PIPE Investments as contemplated by Section 8.04Financing on the terms and subject to the conditions set forth in the PIPE Subscription Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities or other Persons necessary necessary, proper or advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents (such Consents, the “Third-Party Consents”).
(A) The Company and Tailwind shall each bear fifty percent (50%) of the HSR Act filing fee, any filing fees or other costs payable to a Governmental Entity in connection the preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the preparation, filing or mailing of the Registration Statement / Proxy Statement and (B) subject to Section 8.6 and the immediately preceding clause (A), each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any Third-Party Consents. Each Party shall (Ax) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 five (5) Business Days) following the Original date of this Agreement Date and (By) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Tailwind shall promptly inform the Company of any communication between Acquirorany Tailwind Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror Tailwind of any communication between either Companythe Company or the Company Stockholder Representative, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Tailwind and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the any Group Company or any of their respective Subsidiaries or any entity entity, facility or asset of such Party or any of its Affiliates or any other Person or Affiliates, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, (3) amend, assign or terminate existing licenses or other agreements or (4) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of Tailwind’s and the other Parties’ Company’s prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Acquirorthe Tailwind Parties, on the one hand, and the CompanyCompany and the Company Stockholder Representative, on the other hand, shall give counsel for the Company (in the case of Acquirorany Tailwind Party) or Acquiror Tailwind (in the case of the CompanyCompany or the Company Stockholder Representative), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and any Tailwind Party, the Company, or, in the case of the Company or the Company Stockholder Representative, Tailwind in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in the case of Acquiror and any Tailwind Party, the Company, or, in the case of either the Company or Acquirorthe Company Stockholder Representative, Tailwind, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(cd) During From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, AcquirorTailwind, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings Proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror Tailwind, Tailwind or any of its Representatives (in their capacity as a representative Representative of AcquirorTailwind) or, in the case of the Company, any Group Company or any of their respective Representatives of the Company (in their capacity as a representative Representative of the CompanyTailwind). Acquiror Tailwind and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, x) in no event shall the Group Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquirorthe prior written consent of Tailwind (not to be unreasonably withheld, conditioned or delayed), and in no event shall Tailwind or any of its Representatives settle or compromise any Transaction Litigation without the Company’s prior written consent (not to be unreasonably withheld, contained conditioned or delayed).
; provided, that it shall be deemed to be reasonable for Tailwind or the Company, as applicable, to withhold, condition or delay its consent if any such settlement or compromise (dA) If Acquiror does not provide for a legally binding, full, unconditional and irrevocable release of the Tailwind Party and/or any of its Representatives (in the case of any consent by Tailwind) or the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting and/or any of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to Representatives (in the Acquiror Termination Date case of a proposal to amend any consent by the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date Company) that is no earlier than June 30or are, 2023 (such proposed extended deadlineas applicable, the “Extension Date”, and subject of such proposal, the “Extension Proposal”Transaction Litigation (if any), (iiB) Acquiror and provides for (x) any cash payment that is payable by any Tailwind Party or any of its Representatives (in the case of any consent by Tailwind) or the Company shall cooperate with the preparation, filing and mailing or any of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, its Representatives (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy case of any consent by the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount Company) or would otherwise constitute a Liability of funds to the Trust Account any Tailwind Party of any of its Representatives (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy case of Tailwind) or the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with Company or any of its advisors, and Representatives (iv) and in the event the Extension Proposal is duly approved case of any consent by the affirmative vote Company) or (y) any non-monetary, injunctive, equitable or similar relief against any Tailwind Party or any of its Representatives (in the holders case of any consent by Tailwind) or the requisite number Company or any of Acquiror Common Stock entitled to vote thereon its Representatives (in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension case of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated any consent by the Extension Proposal. If, following Company) or (C) contains an admission of wrongdoing or Liability by any such approval Tailwind Party or any of its Representatives (in the Extension Proposal, Acquiror and case of any consent by Tailwind) or the Company determine or any of its Representatives (in good faith that it is probable that the Transactions will not be consummated on or before case of any consent by the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceCompany).
Appears in 1 contract
Samples: Business Combination Agreement (Tailwind Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Seller, Buyer and the Parties shall Company agrees to coordinate and cooperate with each other and use their respective all reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions (including transactions contemplated by this Agreement, including, without limitation, (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions transactions contemplated by this Agreement, (ii) to cooperate in the preparation and filing of any filings that may be required under the HSR Act and any amendments thereto, (iii) to comply with all requirements under the HSR Act and other Laws applicable to the transactions contemplated hereby, (iv) to contest any legal proceeding relating to the Stock Purchase and (v) to execute any additional instruments necessary to consummate the transactions contemplated hereby. All costs incurred in connection with obtaining such consents shall be borne by the Transaction Agreements. Each Party incurring such costs; provided that the HSR Act filing fee shall be borne solely by Buyer.
(Ab) make all required filings Seller and Buyer each agree to make, or cause to be made, an appropriate filing of a notification and report form pursuant to the HSR Act with respect to the Transactions Stock Purchase within five (5) Business Days after the date of this Agreement (which filing shall request early termination of the waiting period under the HSR Act) and to supply promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActCompany, Seller, Buyer and (y) each Party and its their respective Affiliates affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim PeriodThe Parties will work cooperatively to develop all communications, Acquiror, on the one handstrategy, and the defense of the transactions contemplated hereby and notify each other promptly upon the receipt of: (i) any comments from any Governmental Entity in connection with any filings or other actions made pursuant to this Section 4.4 and (ii) any request by any Governmental Entity for amendments or supplements to any such filings or other actions, or for information provided to comply in all material respects with any Laws. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing or other action made pursuant to this Section 4.4, Buyer or the Company, on as the case may be, will promptly inform the other handof such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement.
(d) In furtherance and not in limitation of the foregoing, shall Buyer agrees to use its best efforts to avoid, eliminate or resolve each notify and every impediment and obtain all clearances, consents, approvals and waivers under the other in writing promptly after learning HSR Act that may be required by the United States Department of any shareholder demands Justice (“DOJ”) or the United States Federal Trade Commission (“FTC”), so as to enable the Parties to consummate the Stock Purchase as soon as reasonably practicable, including without limitation (i) committing to or effecting, by consent decree, hold separate orders, trust, or otherwise, the sale, license, transfer, assignment or other shareholder proceedings disposition of assets or businesses of Buyer, its Subsidiaries or the Target Companies, (including derivative claimsii) relating terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, collaborations, relationships, ventures, contractual rights, obligations or other arrangements of Buyer, its Subsidiaries or the Target Companies, and (iii) creating or consenting to this Agreementcreate any relationships, ventures, contractual rights, obligations, behavioral undertakings or other arrangements of Buyer, its Subsidiaries or the Target Companies, and, in each case, to enter, or offer to enter, into agreements and stipulate to the entry of an order or decree with the DOJ or the FTC in connection with any Transaction Agreements or any matters relating thereto (collectively, of the “Transaction Litigation”) commenced against, foregoing and in the case of Acquiror actions by or any of with respect to the Company or its Representatives (in their capacity as a representative of Acquiror) orbusinesses or assets, in the case of the Company, or any respective Representatives of by consenting to such action by the Company (in their capacity as each a representative of the Company“Divestiture Action”). Acquiror Buyer shall offer to commit and effect, by consent decree, hold separate order or otherwise, any and all Divestiture Actions or otherwise offer to take or offer to commit (and if such offer is accepted, commit to and effect) to take any Divestiture Action as may be requested or required in writing by the Company DOJ or the FTC to resolve any objections by the DOJ or the FTC to the Stock Purchase; provided, however, (1) Buyer shall each not be required to take, or cause to be taken, any Divestiture Action if such Divestiture Action includes the sale of any single asset that generated total EBITDA during the twelve (i12) months period ended December 31, 2013 in excess of five million dollars ($5,000,000) (such asset, a “Material Asset”) and (2) Buyer shall have up to thirty (30) days to contest Divestiture Actions requested or required by the DOJ or the FTC. Buyer shall (A) direct any negotiations with any Governmental Entity relating to the matters described in this Section 4.4(d), (B) keep the other reasonably Company informed regarding of any Transaction Litigationcontacts with any Governmental Entity relating thereto, (iiC) give allow the other the opportunity to, at its own cost Company’s outside lawyers to review and expense, participate in the defense, settlement comment on submissions and compromise of presentations to any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Governmental Entity relating thereto, (iiiD) consider in good faith the other’s advice with respect to any such Transaction Litigationcomments, and (ivE) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of allow the Company, set forth ’s outside lawyers to attend any meetings and participate in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, telephone conferences with any Governmental Entity relating thereto that in no event shall Acquiror settle or compromise they deem necessary to complete negotiations with any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)Governmental Entity relating thereto.
(de) If Acquiror and In the Company determine event any claim, action, suit, investigation or other proceeding by any Governmental Entity or other Person is commenced against a Party (or its affiliates) which questions the validity or legality of the transactions contemplated hereby or seeks damages in good faith that it is probable that connection therewith other than under the Transactions will not be consummated on or before March 12HSR Act, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders such Party agrees to be held and shall use its reasonable best efforts to obtain approval from defend against such stockholders prior claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to the Acquiror Termination Date of a proposal use commercially reasonable efforts to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (have such proposed extended deadline, the “Extension Date”injunction or other order lifted, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall to cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and reasonably regarding any other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable impediment to the consummation of a business combination in accordance with the foregoing sentencetransactions contemplated hereby.
Appears in 1 contract
Efforts to Consummate. Without limiting any covenant contained in Article VI, Article VII or Article VIII, the Company, the Acquisition Entities and SPAC shall (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments all material consents and approvals of third parties that the Company and any Group Companies or SPAC, as contemplated by Section 8.04). Without limiting applicable, are required to obtain in order to consummate the generality of the foregoingTransactions, each of the Parties shall and (b) use reasonable best efforts to obtain, file with or deliver to, take such other action as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant reasonably necessary or as another party hereto may reasonably request to satisfy the HSR Act. Acquiror shall promptly inform the Company conditions of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, Article IX (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) orincluding, in the case of the Company, SPAC and PubCo, the use of reasonable best efforts to enforce their respective rights under any Permitted Financing Agreements, as applicable) or any respective Representatives of otherwise to comply with this Agreement and to consummate the Company Transactions as soon as practicable. Without limiting the foregoing, as promptly as reasonable after the date hereof (in their capacity and, as a representative of the Companynecessary, from time to time). Acquiror and , the Company shall each cause notice of the assignment to the Company of the rights and benefits of the DRC Project MOU (as defined in the Company Disclosure Letter) to be given to the counterparties thereto. Without limiting the foregoing, as promptly as reasonable after the date hereof, the Company shall (at its expense): (i) keep submit a completed stock transfer form in respect of the other reasonably informed regarding any Transaction Litigationtransfer of the BMC Shares, (ii) give the other the opportunity to, at its own cost and expense, participate which has been duly executed in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights favor of the Company, set forth to HM Revenue and Customs for stamping and paying or causing to be paid any stamp duties and other similar taxes and duties payable in respect of such transfer, in each case not later than the immediately preceding sentencedate required by applicable Law (for the avoidance of doubt, control prior to the negotiation, defense date after which any fines or penalties would be imposed); and settlement (ii) cause BMC to update the books and registers of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without BMC to reflect the prior written consent Company as the sole shareholder of BMC upon receipt of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting stamped stock transfer form from HM Revenue and Customs following the generality payment of the foregoing, stamp duty and stock transfer form submission referred to in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then clause (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceabove.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Seller and Buyer shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all reasonable things reasonably necessary or advisable and proper under applicable laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX ARTICLE 7 and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated hereby). The HSR Act filing fee will be paid by the Transaction AgreementsBuyer. Each Party shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act (which filing shall specifically request early termination of the waiting period prescribed by the HSR Act) with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 ten (10) Business Days) following after the Original date of this Agreement Date and (B) respond shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Each of Buyer and Seller shall promptly inform the Company of use its reasonable best efforts to obtain all necessary and appropriate consents, approvals, waivers, actions, non-actions, or other authorizations from Governmental Entities, with respect to any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period antitrust clearance under the HSR Act and any foreign antitrust laws, as promptly as reasonably practicable, and in any event prior to Closing, and that any conditions set forth in or enter into established by any agreement with any such consents, clearances, approvals, waivers, actions, or non-actions or other authorizations from Governmental Authority not Entities are satisfied on or prior to consummate Closing Date.
(b) Notwithstanding the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreementforegoing, nothing in this Section 8.01 6.3 or any other provision of otherwise in this Agreement obligates any Party shall require Buyer or any of its Affiliates to agree to to: (i) sellpropose, license negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by Order, consent decree, hold separate order, trust or otherwise dispose ofotherwise, the sale, divestiture, license, disposition or hold separate of such assets or businesses of Buyer or its Subsidiaries or Affiliates (including such properties, assets, or operations of the Business and agree to sellthe Company), license or otherwise dispose ofoffer or offer to commit to any action, non-action, condition or conduct requirement (including those that limit Buyer’s or its Subsidiaries’ or Affiliates’ freedom of action, ownership or control with respect to, or its ability to retain or hold, any entities or assets of the Company businesses, assets, product lines, properties or any services of their respective Buyer or its Subsidiaries or any entity Affiliates (including such properties, assets, or asset operations of such Party or any of its Affiliates or any other Person or the Business and the Group Companies)), (ii) terminate, amend relinquish, modify or assign waive existing relationships, ventures, contractual rights, obligations or other arrangements of Buyer or its Subsidiaries or Affiliates (including such properties, assets, or operations of the Business and the Group Companies), (iii) create any existing relationships relationships, ventures, contractual rights, obligations or other arrangements of Buyer or its Subsidiaries or Affiliates (including such properties, assets, or operations of the Business and contractual rights the Company) or obligations. No Party shall agree (iv) enter or offer to enter into agreements and stipulate to the entry of an Order or decree or file appropriate applications with any Governmental Entity in connection with any of the measures in actions contemplated by the foregoing sentence clauses (i) through (iii). Seller shall not make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity with respect to any other Party proposed settlement, consent decree, commitment, or any remedy, or, in the event of its Affiliateslitigation, discovery, admissibility of evidence, timing, or scheduling, except as specifically requested by or agreed with each Buyer.
(c) In the event any Proceeding by a Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use all reasonable efforts to defend against such Proceeding and, if an injunction or other Parties’ prior written consent. During the Interim PeriodOrder is issued in any such action, Acquirorsuit or other proceeding, on the one handto use all reasonable efforts to have such injunction or other Order lifted, and to cooperate reasonably regarding any other impediment to the Company, on consummation of the other hand, transactions contemplated hereby.
(d) Seller and Buyer shall give permit counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions or the Transaction Agreementstransactions contemplated by this Agreement. Each of the Parties Seller and Buyer agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(ce) During the Interim Periodperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, Acquirorexcept as required by this Agreement, on Seller and the one handCompany (and their respective controlled Affiliates) and Buyer and its controlled Affiliates shall not engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would materially impair or materially delay Buyer’s ability to consummate the transactions contemplated by this Agreement or perform its obligations hereunder; it being understood and agreed that Buyer’s or its Affiliates’ consideration of, entry into and/or consummation of a De-SPAC Transaction (and entry into any related documents, including any De-SPAC Transaction Documents), and the Company, on the other handtransactions related thereto, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting violation of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing this sentence.
Appears in 1 contract
Samples: Unit Purchase Agreement (Pathfinder Acquisition Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective effective, as promptly as reasonably practicable practicable, the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to solicit proxies in connection with the SPAC Stockholder Approval, and (iii) using reasonable best efforts to obtain the PIPE Investments Financing on the terms and subject to the conditions set forth in the Subscription Agreements, (iv) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, SPAC)) and (v) making all such filings with and obtaining all such approvals of Nasdaq to permit Class A Common Stock to be issued in accordance with this Agreement to be listed on Nasdaq). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The costs incurred in connection with obtaining such Consents, including the HSR Act filing fee, shall be borne by SPAC; provided, however, that each Party shall, subject to Section 8.6, bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business Days) following the Original Agreement Date date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between Acquirorany SPAC Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either Companythe Company or any of its Affiliates, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of SPAC and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or facilities, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of SPAC’s and the other Parties’ Company’s prior written consent. .
(b) During the Interim Period, Acquirorand unless prohibited by applicable Law, the SPAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany SPAC Party) or Acquiror SPAC (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany SPAC Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company the Company, SPAC in advance. The Parties agree to consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or Acquiror, submitted by or on behalf of any Party in connection with judicial proceedings under or relating to the opportunity to attend and participate in such meeting HSR Act or discussionany Foreign Antitrust Law.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(cd) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoingthis Section 5.2, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent SPAC will (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall cause the Sponsor to) use its commercially reasonable best efforts to obtain approval from such stockholders prior to cause the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval satisfaction of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as condition set forth in Section 8.026.3(c), which may include, during the Interim Period and subject to applicable Law, using commercially reasonable efforts to obtain (i) from Persons who have not previously entered into a Subscription Agreement on the date hereof, Subscription Agreements (ii) from all Pre-Closing SPAC Stockholders who have not previously entered into a Non-Redemption Agreement on the date hereof, Non-Redemption Agreements, and (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained a partial cancellation or reduction in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceSPAC Expenses.
Appears in 1 contract
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Digital Transformation Opportunities Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement, including any Transaction Financing (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to, and to cause its Affiliates to, obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party Without limiting the generality of the foregoing, in the event of any inquiry, request, investigation or other communication with, from or on behalf of any Governmental Authority in connection with the Transactions, the Parties shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (respond timely and in any event within 10 Business Days) following the Original Agreement Date and (B) respond otherwise as promptly as reasonably practicable practicable, and jointly cooperate with one another and with such Governmental Authority in connection therewith and any such inquiry, request, investigation or other communication (“Governmental Inquiry”). Notwithstanding anything to the contrary herein, the Company shall pay for and be responsible for any and all reasonable, out-of-pocket expenses incurred by any of the Parties in connection with or arising as a result of responding to any requests Governmental Inquiry, and including any costs and expenses incurred by SPAC relating to any of the matters contemplated by Section 8.04 following a Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActInquiry. Acquiror SPAC shall promptly inform the Company of any communication between AcquirorSPAC, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act any Competition Laws or enter into any agreement with any Governmental Authority not to consummate the TransactionsTransactions or by the other Transaction Agreements, except with the prior written consent of SPAC and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Company.
(ib) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorSPAC) or Acquiror SPAC (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority (including any Competition Authorities) relating to the Transactions or the Transaction Agreements. Neither Party shall submit any written communication to any Governmental Authority (including Competition Authorities) relating to the Transactions or the Transaction Agreements without the other Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed). Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and SPAC, the Company, or, in the case of the Company, SPAC in advance and, to the extent not prohibited by such Governmental Competition Authority, gives, in the case of Acquiror and SPAC, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror SPAC or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions.
(cd) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, SPAC or any of its Representatives (in their capacity as a representative of AcquirorSPAC) or, in the case of the Company, or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, SPAC and the rights of the Company, set forth in the immediately preceding sentence, Company shall be entitled to jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that and in no event shall Acquiror SPAC (or any of its Representatives), on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to On the terms and subject to the conditions hereinset forth in this Agreement, each of the Parties parties hereto shall use their respective commercially reasonable best efforts to take, or cause to be taken, as promptly as reasonably practicable, all actions actions, and to do, or cause to be done, as promptly as reasonably practicable, all things reasonably necessary or advisable under applicable Laws to consummate and make effective the SPAC Merger, the Acquisition Merger and the other transactions contemplated hereby as promptly as reasonably practicable the Transactions (practicable, including (i) the satisfaction by using commercially reasonable efforts to take all action necessary to satisfy all of the closing conditions set forth in Article IX to the obligations of the other party or parties hereto to effect the SPAC Merger and (ii) using reasonable best efforts the Acquisition Merger, to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoingany necessary waivers, each of the Parties shall use reasonable best efforts consents and approvals and to obtain, file effect all necessary registrations and filings with or deliver to, as applicable, any consents of any Governmental Authorities and to remove any injunctions or other Persons necessary impediments or delays, legal or otherwise, in each case in order to consummate and make effective the Transactions SPAC Merger, the Acquisition Merger and the other transactions contemplated by this Agreement.
(b) The Company shall use (and shall cause its Affiliates to use) its commercially reasonable efforts to fulfill the Transaction Agreements. Each Party shall filing procedure with the CSRC and report relevant information in a timely manner per the requirements of the Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies, promulgated by the CSRC on February 17, 2023 (Athe “Overseas Listing Trial Measures”) make all required filings pursuant to and the HSR Act with supporting guidelines of the Overseas Listing Trial Measures.
(c) With respect to Pubco, during the Transactions promptly (and in any event within 10 Business Days) following Interim Period, the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between AcquirorCompany, on the one hand, and any Governmental Authority, on the other hand, Pubco and the Company Shareholders’ Representative shall promptly inform Acquiror of any communication between either Company, on use commercially reasonable efforts to cause Pubco to maintain its status as a “foreign private issuer” as such term is defined under Exchange Act Rule 3b-4 and through the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction ExpensesClosing. Notwithstanding anything to the contrary herein, in connection with the exercise of any commercially reasonable efforts or other standard of conduct pursuant to this Agreement, nothing neither the Company nor SPAC shall be required, in this Section 8.01 or respect of any other provision of this Agreement obligates Agreement, to pay any Party extraordinary fees, expenses or other amounts to any Governmental Authority or any party to any Contract (excluding, for the avoidance of its Affiliates to agree to (i) selldoubt, license or otherwise dispose of, or hold separate ordinary course fees and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any expenses of their respective Subsidiaries attorneys and advisors), commence or participate in any entity Action or asset offer or grant any accommodation (financial or otherwise) to any third party, dispose of such Party any assets, incur any material obligations or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionforegoing.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (DT Cloud Acquisition Corp)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall shall: (a) use their respective reasonable best efforts to assemble, prepare and, as soon as practicable following the date of this Agreement, file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as reasonably practicable all governmental and regulatory consents required to be obtained in connection with the Transactions, (b) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (Transactions, including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality all material approvals of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities that any of Plum, the Company, or other Persons necessary their respective Affiliates are required to obtain in order to consummate the Transactions Transactions; provided that in no event shall a Party be obligated to bear any material expense, pay any material fee or grant any material concession in connection with obtaining any such approvals; provided, however, that (A) the Company shall pay the HSR Act filing fee and any filing fee required under any Foreign Antitrust Laws; and (B) each Party shall bear its out-of-pocket costs and expenses in connection with the transactions contemplated by preparation of any such approvals, and (C) take such other action as may reasonably be necessary or as any other Party may reasonably request to satisfy the Transaction Agreementsconditions of the other Parties set forth in Article X or otherwise to comply with this Agreement. Each Party shall (Ai) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions as promptly as practicable (and in any event within 10 Business Daysfourteen (14) days) following the Original Agreement Date and date of this Agreement, (Bii) respond make any appropriate filings or take, or cause to be taken, any required actions pursuant to any Foreign Antitrust Laws set forth on Schedule 10.01(a) with respect to the Transactions as promptly as practical following the date of this Agreement and (iii) provide a reasonably complete response (and in the case of a formal request, i.e., a “Second Request,” a substantially compliant response) as promptly as practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActAct or under any Foreign Antitrust Laws set forth on Schedule 10.01(a). Acquiror The Parties shall promptly inform the Company other of any substantive communication between Acquiror, on the one hand, itself and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, Authority regarding any of the Transactions or any Transaction AgreementTransactions. Without limiting the foregoing, (xa) the Parties agree to request early termination of all the applicable waiting periods applicable to the Transactions period under the HSR Act, and (yb) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or under any Foreign Antitrust Laws set forth on Schedule 10.01(a) or enter into any agreement with any Governmental Authority not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 9.02 obligates any Party or any of its Affiliates to agree to (i) sell, license license, or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or Company, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign, or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except (i) as expressly contemplated by this Agreement or any other Transaction Document, (ii) as required by applicable Law, (iii) as set forth in Section 9.02(a), or (iv) with each of the such other Parties’ prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Acquiror, on the one hand, and the Company, on the other hand, Parties shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), other Parties a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed material written communication to any Governmental Authority relating to the Transactions or the Transaction AgreementsTransactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person person, videoconference or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in with the case of Acquiror and the Companyother Parties, in advance and, to the extent not prohibited by such Governmental Authority, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Parties the opportunity to attend and participate in such meeting or discussion.
(b) . Notwithstanding anything the foregoing, any materials shared may be redacted before being provided to the contrary in the Agreement, other Parties (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matterremove references concerning the valuation of the Company, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror as necessary to comply with contractual arrangements and (iii) as necessary to avoid disclosure of other competitively sensitive information or the Company be obligated to bear any expense address reasonable privilege or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconfidentiality concerns.
(c) During Without limiting the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelyforegoing, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company Parties shall each use commercially reasonable efforts to (i) keep consummate the other reasonably informed regarding any Transaction Litigation, transactions contemplated by the Company Financings; (ii) give the other the opportunity to, at its own cost satisfy in all material respects on a timely basis all conditions and expense, participate covenants applicable to it in the defense, settlement Contracts for the Company Financing and compromise of any such Transaction Litigation and reasonably cooperate otherwise comply with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), their obligations thereunder; (iii) consider in good faith the other’s advice with respect event that all conditions in the Contracts for a Company Financing (other than conditions whose satisfaction is controlled by a Party or their Affiliates and other than conditions that by their nature are to any such Transaction Litigationbe satisfied at the Closing) have been satisfied, and consummate the transactions contemplated by the Company Financings; (iv) reasonably cooperate confer with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights other regarding timing of the Company, set forth closing of transactions contemplated by the Company Financings; and (v) enforce their rights under the Contracts for the Company Financing in the immediately preceding sentence, control the negotiation, defense and settlement of any event that all conditions in such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Contracts for a Company Financing (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries other than conditions whose satisfaction is controlled by a Party or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not Affiliates and other than conditions that by their nature are to be unreasonably withheld, contained or delayed)satisfied at the Closing) have been satisfied.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Plum Acquisition Corp. I)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of Consents of, or notices to, any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (Ai) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 ten (10) Business Days) following the Original date of this Agreement, (ii) submit notifications (including draft notifications, as applicable), filings, notices and other required submissions pursuant to the Competition Laws of the other jurisdictions set forth on Schedule 8.01(a) of the Company Disclosure Schedules with respect to the transactions contemplated by this Agreement Date as promptly as practicable following the date of this Agreement (and any filing fees associated with any such filings shall be paid by Acquiror) and (Biii) respond as promptly as reasonably practicable to any requests by any Governmental Authority (including any Competition Authorities) for additional information and documentary material that may be requested pursuant to any Competition Laws (including the HSR Act). Acquiror shall promptly inform the Company of any communication between Acquirorany Acquiror Party, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, and the Company shall promptly inform Acquiror of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or any other Competition Laws or enter into any agreement with any Governmental Authority not to consummate the TransactionsTransactions or by the other Transaction Agreements, except with the prior written consent of Acquiror and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Company.
(ib) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquirorthe Acquiror Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany Acquiror Party) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority (including any Competition Authorities) relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of any Acquiror and Party, the Company, or, in the case of the Company, Acquiror in advance and, to the extent not prohibited by such Governmental Competition Authority, gives, in the case of any Acquiror and Party, the Company, or, in the case of either Company or the Company, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary contained in this Agreement, Acquiror Parties shall cooperate in good faith with the Competition Authorities and undertake promptly any and all action required to complete lawfully the transactions contemplated by this Agreement as soon as practicable (but in any event prior to the Termination Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove any impediment under the Competition Laws or the actual or threatened commencement of any proceeding in any forum by or on behalf of any Competition Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Mergers, including (i) selling, divesting, or otherwise disposing of, licensing, holding separate, or taking or committing to take any action that limits in any respect the Acquiror’s or the Company’s freedom of action with respect to, or its ability to retain, any business, products, rights, services, licenses, assets or properties of the Company and its Subsidiaries, and (ii) contesting, defending, challenging and appealing any threatened or pending proceeding, or preliminary or permanent injunction, or other Law or Governmental Order that would adversely affect, delay or prevent the ability of any Party to consummate the transactions contemplated hereby, and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided, however, that Acquiror shall not, and shall cause its Subsidiaries and Affiliates not to, take any action described in subsection (i) of this Section 8.01(c) that relates to, or involves, impacts, burdens or restricts, the Company or its Subsidiaries or Affiliates, or any of their respective assets, businesses or product lines, without the Company’s prior written consent in respect of each instance; provided, further, that notwithstanding anything to the contrary contained herein, none of the Acquiror Parties shall be deemed to be in breach of this Section 8.01(c) for failure to take any such action described in this Section 8.01(c) as a result of any condition, delay, or withholding of the Company’s prior written consent in respect of such action.
(d) Acquiror shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Competition Authorities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated hereby; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the transactions contemplated hereby.
(e) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) other than for de minimis costs and expenses, in no event shall Acquiror or Acquiror, Merger Subs, the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions; provided that any fees relating to any filings under Competition Laws (including HSR) shall be borne in accordance with Section 11.05.
(cf) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of its their respective Representatives (in their capacity as a representative Representative of Acquiroran Acquiror Party) or, in the case of the Company, or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative Representative of the CompanyCompany or its Subsidiaries). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in (subject to a customary joint defense agreement), the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, (i) Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, Company shall jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that (ii) in no event shall Acquiror (or any of its Representatives), settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned delayed or delayedconditioned). Without limiting the generality of the foregoing, and (iii) in no event shall the Company or its Subsidiaries (or any of their respective Representatives its Representatives), settle or compromise any Transaction Litigation without Acquiror’s the prior written consent of the Acquiror (not to be unreasonably withheld, contained delayed or delayedconditioned).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement and (ii) using reasonable best efforts the Company taking, or causing to obtain PIPE Investments be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, ALPA)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The Company shall bear the costs incurred in connection with obtaining such Consents, including the HSR Act filing fee; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (Ai) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business Days) following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror ALPA shall promptly inform the Company of any communication between Acquirorany ALPA Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror ALPA of any communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of ALPA and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or Company, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of ALXX’s and the other Parties’ Company’s prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, Acquirorthe ALPA Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany ALPA Party) or Acquiror ALPA (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany ALPA Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, the opportunity to attend and participate ALPA in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Alpha Healthcare Acquisition Corp Iii)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective effective, as promptly as reasonably practicable practicable, the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing Closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to solicit proxies in connection with the DYNS Stockholder Approval, and (iii) using reasonable best efforts to obtain the PIPE Investments Financing on the terms and subject to the conditions set forth in the Subscription Agreements, and (iv) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, DYNS)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The costs incurred in connection with obtaining such Consents, including the HSR Act filing fee, shall be borne 50% by the Company and 50% by DYNS; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business Days) following the Original Agreement Date date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror DYNS shall promptly inform the Company of any communication between Acquirorany DYNS Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror DYNS of any communication between either Companythe Company or any of its Affiliates, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of DYNS and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or facilities, (ii2) terminate, amend or assign any existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of DYNS’s and the other Parties’ Company’s prior written consent. .
(b) During the Interim Period, Acquirorand unless prohibited by applicable Law, the DYNS Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany DYNS Party) or Acquiror DYNS (in the case of the Company), ) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany DYNS Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, the opportunity to attend and participate DYNS in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Dynamics Special Purpose Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain consummate the PIPE Investments as contemplated by Section 8.04Financing on the terms and subject to the conditions set forth in the PIPE Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities (including notice to the IIA) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority (including notice to the IIA) for additional information and documentary material that may be requested pursuant to the HSR Actany Competition Laws. Acquiror Hxxxxx shall promptly inform the Company of any communication between AcquirorHepion, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror Hxxxxx of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act any Competition Laws or enter into any agreement with any Governmental Authority not to consummate the TransactionsTransactions or by the other Transaction Agreements, except with the prior written consent of Hepion and the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Company.
(ib) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, AcquirorHepion, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of AcquirorHepion) or Acquiror Hepion (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority (including notice to the IIA) relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and Hepion, the Company, or, in the case of the Company, Hepion in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and Hepion, the Company, or, in the case of either Company or Acquirorthe Company, Hepion, the opportunity to attend and participate in such meeting or discussion.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and conflict, (ii) in no event shall Acquiror or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions, and (iii) in no event shall the failure to obtain any Consent (including of the IIA), except to the extent expressly provided in Section 9.01, be considered, constitute, triggered or give any rights in respect of, failure of a condition to the Closing.
(cd) During the Interim Period, AcquirorHepion, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror Hepion, Hepion or any of its Representatives (in their capacity as a representative of AcquirorHepion) or, in the case of the Company, or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). Acquiror Hepion and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding anything to the foregoingcontrary, Acquiror shall, subject to and without limiting the covenants and agreements, (i) Hepion and the rights of the Company, set forth in the immediately preceding sentence, Company shall jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that Litigation brought against Hepion or its Representatives and (ii) in no event shall Acquiror Hepion (or any of its Representatives) settle or compromise any Transaction Litigation brought against Hepion or its Representatives without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)Company.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof the transactions contemplated by this Agreement, including (i) preparing and filing with a Governmental Entity as reasonably promptly as practicable all applications, notices, petitions, filings, ruling requests, and other documents necessary to consummate the satisfaction of transactions contemplated by this Agreement and to obtain as reasonably promptly as practicable all Consents necessary to be obtained from any Governmental Entity in order to consummate the closing conditions set forth in Article IX transactions contemplated by this Agreement (collectively, the “Governmental Approvals”) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event transactions contemplated hereby within 10 Business Days) following Days of the Original Agreement Date and date of this Agreement, unless otherwise agreed by the parties, (B) respond make all other filings, including with respect to the USFS Permits and Canadian Permits, that are required to be made in order to consummate the transactions contemplated hereby pursuant to other Regulatory Laws with respect to the transactions contemplated hereby as reasonably promptly as reasonably practicable practicable, (C) make all other filings, including with respect to any requests by any Governmental Authority for additional information the USFS Permits and documentary material Canadian Permits, that may are required to be requested made in order to consummate the transactions contemplated hereby pursuant to other Regulatory Laws with respect to the HSR Act. Acquiror shall transactions contemplated hereby as reasonably promptly inform the Company of any communication between Acquiror, on the one handas practicable, and (D) not extend any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions period under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”), the Commissioner or any other Governmental Authority Entity not to consummate the Transactionstransactions contemplated by this Agreement, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees party hereto (which shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror Parent and the Company determine in good faith shall supply as reasonably promptly as practicable any additional information or documentation that it is probable that may be requested pursuant to the Transactions will not be consummated on HSR Act or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held any other Regulatory Law and shall use its reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible (including complying with any “second request” for information or similar request from a Governmental Entity pursuant to other Regulatory Laws within no greater than 90 days from its date of issuance).
(b) In connection with the actions referenced in Section 6.03(a) to obtain approval from such stockholders prior to all Governmental Approvals for the Acquiror Termination Date transactions contemplated by this Agreement under the HSR Act or any other Regulatory Laws, each of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror Parent and the Company shall (i) cooperate in all respects with the preparationeach other in connection with any communication, filing or submission and mailing in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel promptly informed of proxy materials to be sent to Acquiror’s stockholders seeking approval any communication received by such party from, or given by such party to, the FTC, the DOJ, the Commissioner or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ, the Commissioner or any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent required permitted by the FTC, the DOJ, the Commissioner or such other Governmental Entity or other person, give the other party and/or its counsel the opportunity to obtain approval of the Extension Proposal attend and to cause sufficient funds to be retained participate in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, meetings and conferences; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and in documents submitted therewith) intended to be given by it to the event FTC, the Extension Proposal is duly approved by DOJ, the affirmative vote Commissioner or any other Governmental Entity; provided that materials may be redacted to remove references concerning the valuation of the holders businesses of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents Company and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposalits Subsidiaries. If, following any such approval of the Extension Proposal, Acquiror Parent and the Company determine in good faith that it is probable that may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the Transactions other under this Section 6.03(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be consummated disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 6.03(a) and 6.03(b), Parent and the Company shall use reasonable best efforts to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Extension End Date, Acquiror including defending (with sufficient time for resolution in advance of the End Date) through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement by the FTC, the DOJ, the Commissioner or any other applicable Governmental Entity or any private party; and (ii) avoid or eliminate impediments under any Regulatory Law so as to enable the Closing to occur as soon as possible (and in any event no later than the End Date), provided, however, that none of the Guarantors or any of their Affiliates, Parent or the Company shall be required to, nor shall the Company, without the prior written consent of Parent, (x) agree to the sale, divestiture or disposition of such businesses, product lines, assets, contractual rights, or relationships of the Guarantors or any of their Affiliates, Parent, the Company and their respective Subsidiaries or (y) otherwise take or commit to take actions that after the Closing would limit the Guarantors’ or any of their Affiliates’ or Parent’s or its Subsidiaries’ (including the Company and the Company Subsidiaries) freedom of action with respect to, or its or their ability to operate or retain, one or more of the businesses, product lines or assets of the Guarantors or any of their Affiliates, Parent, the Company or their respective Subsidiaries. Subject to the Parent’s undertakings pursuant to this Section 6.03, the final determination of the appropriate course of action with respect to the actions contemplated in Section 6.03(b) and this Section 6.03(c) shall be made by Parent.
(d) The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (i) the occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably be expected to result in the failure to satisfy or be able to satisfy any of the conditions specified in Article VII, and such written notice shall specify the condition which has failed or will fail to be satisfied; (ii) any written notice from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement to the extent such consent is material to the Company and the Company Subsidiaries, taken as a whole; and (iii) any material written notice from any Governmental Entity in connection with the transactions contemplated by this Agreement; provided that the delivery of any notice pursuant to this Section 6.03(d) shall not limit or otherwise affect the remedies available hereunder to Parent or the Company.
(e) The Company acknowledges and agrees that Parent’s taking of any actions contemplated by Section 5.02 shall not be or be deemed a breach of Parent’s obligations under this Section 6.03 (it being acknowledged and understood that neither Section 5.02 nor this Section 6.03(e) shall affect Parent’s obligations with respect to payment of the Regulatory Termination Fee in accordance with Section 8.03 hereof).
(f) The Company and the Parent shall use commercially reasonable efforts to notify the Forest Service of the transactions contemplated hereby as the same relate to the Winter Park Resort that is operated by the Company, and shall cooperate in good faith to request and effectuate further amendments respond to reasonable requests for information from the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination Forest Service in accordance with the foregoing sentenceconnection therewith.
Appears in 1 contract
Samples: Merger Agreement (Intrawest Resorts Holdings, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 8). Each of Parent, Merger Sub and (ii) using the Company shall use commercially reasonable best efforts to notify and to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any all Governmental Authorities Entities as necessary or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by the Transaction Agreementsthis Agreement. Each Party shall (A) make all required filings an appropriate filing pursuant to the HSR Act and with any applicable other Governmental Entity for which a competition filing is required in each case, with respect to the Transactions promptly transactions contemplated by this Agreement, at a time mutually agreed by Parent and the Company (and in any event within 10 Business Daysshall use their respective reasonable best efforts to make such filing not later than January 2, 2014) following the Original Agreement Date and (B) respond thereafter shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR ActAct or Applicable Law governing a foreign competition filing. Acquiror shall promptly inform the Company Each of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, Parent and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other handshall, in either casetheir respective filings pursuant to the HSR Act, regarding any request early termination of the Transactions or any Transaction Agreementwaiting period under the HSR Act. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, Company and (y) each Party and its respective Affiliates Parent shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement Contract with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The , and (ii) Parent, Merger Sub and the Company will pay agree to take all filing fees actions that are reasonably necessary or reasonably advisable or as may be reasonably required by any Governmental Entity to consummate the transactions contemplated by this Agreement; provided, however, that in connection with the HSR Act when due and no event shall such fees shall efforts be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreementinclude (A) selling, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective its Subsidiaries or any entity entity, facility or asset of such Party Parent or any of its Affiliates Subsidiaries, (B) terminating, amending or any other Person or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations or obligations(C) amending, assigning or terminating any existing Contracts and entering into any new Contracts. No Party All HSR Act filing fees shall agree be borne by Parent. The Company shall use reasonable best efforts to any of obtain executed Joinders and executed counterparts to the measures in the foregoing sentence with respect Stockholders Agreement prior to any other Party or any of its Affiliates, except with Closing from each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, Seller who has not signed this Agreement and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionStockholders Agreement.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant Subject to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced againstSection 7.4(a), in the case of Acquiror event any Proceeding by any Governmental Entity or any of its Representatives (in their capacity as a representative of Acquiror) or, in other Person is commenced which questions the case validity or legality of the Companytransactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use commercially reasonable efforts to defend against such Proceeding and, if an Order is issued in any such Proceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any respective Representatives other impediment to the consummation of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigationtransactions contemplated hereby; provided, however, that in no event shall Acquiror the Company may not settle or compromise any Transaction Litigation stockholder lawsuits related to the foregoing without the prior written consent of the Company Parent (which consent shall not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(dc) If Acquiror Within a reasonable period of time prior to the Closing, Parent shall deliver to each Accredited Stockholder the information that is required to be provided to such Accredited Stockholders under Rule 502 of Regulation D (“Regulation D”) promulgated by the SEC under the Securities Act so that the issuance of shares of Parent Common Stock in the Merger will qualify for an exemption from the registration and prospectus delivery requirements of the Securities Act under Regulation D. The Company shall provide any disclosure or other information regarding the Company reasonably required by Parent for inclusion in any disclosure materials delivered by Parent to the Accredited Stockholders pursuant to this Section 7.4(c) and the Company determine in good faith agrees that all information provided by it is probable that the Transactions for such purpose will not be consummated on contain any untrue statement of a material fact or before March 12omit to state a material fact necessary in order to make the statements therein, 2023 (in light of the “Acquiror Termination Date”)circumstances under which they are made, then (i) Acquiror shall call a special meeting of its stockholders to be held not misleading. Any and shall use its reasonable best efforts to obtain approval from such stockholders prior all information provided by Parent to the Acquiror Termination Date Accredited Stockholders pursuant to this Section 7.4(c) (other than any information provided by the Company expressly for inclusion therein) will comply in all material respects with Regulation D and will not contain any untrue statement of a proposal material fact or omit to amend state a material fact necessary in order to make the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30statements therein, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval in light of the Extension Proposal in accordance with the same effortscircumstances under which they were made, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentencemisleading.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof the transactions contemplated by this Agreement, including (i) promptly preparing all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all Consents necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts promptly taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts party hereto agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) within ten (10) Business Days following the date of this Agreement, make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and transactions contemplated hereby, (B) respond as within ten (10) Business Days following the date of this Agreement, make an appropriate and complete filing of a notification pursuant to subsection 114(1) of the Canadian Competition Act, provided that Parent shall also make a request for an advance ruling certificate pursuant to section 102 of the Canadian Competition Act or a “no action” letter indicating that the Commissioner of Competition appointed under subsection 7(1) of the Canadian Competition Act or any person designated to perform functions on behalf of the Commissioner of Competition (collectively, the “Commissioner”) does not, at that time, intend to make an application under section 92 of the Canadian Competition Act, and (C) make all other filings pursuant to other applicable Regulatory Laws in respect of the transactions contemplated hereby. The Company shall use its reasonable best efforts to help Parent prepare all post-Closing filings that Parent deems advisable to make. Each of Parent and the Company shall supply promptly as reasonably practicable to the other party any requests by any Governmental Authority for additional information and documentary material or documentation that may be requested required pursuant to the HSR Act. Acquiror shall promptly inform Act or the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions Canadian Competition Act filings or any Transaction Agreementother filings required under other applicable Regulatory Laws. Without limiting Parent shall pay the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions filing fees under the HSR Act, the Canadian Competition Act or other applicable Regulatory Law filings, but the Company shall bear its own costs for the preparation of any such filings.
(b) Each of Parent and (ythe Company shall, in connection with the actions referenced in Section 7.03(a) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period to obtain all Governmental Approvals under the HSR Act or any other Regulatory Laws, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party and/or its counsel informed of any communication received by such party from, or given by such party to, the FTC, the DOJ or any other U.S. or other Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other Governmental Entity or other Person, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences, in each case regarding any of the transactions contemplated hereby; and (iv) permit the other party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Entity, in each case regarding any of the transactions contemplated hereby. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.03(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(c) Parent and the Company shall, as promptly as practicable, use their respective reasonable best efforts to obtain all necessary consents, approvals, waivers, and clearances required under the HSR Act or other applicable Regulatory Laws prior to the End Date with respect to the transactions contemplated by this Agreement, including (i) to secure the expiration or termination of any applicable waiting period; (ii) to obtain the applicable Governmental Approvals; (iii) to resolve any objections asserted with respect to the transactions contemplated by this Agreement raised by any Governmental Entity; and (iv) to prevent the entry of, and to have vacated, lifted, reversed, or overturned, any decree, judgment, injunction or order under or based upon any Regulatory Law that would prevent, prohibit, make unlawful, restrict, or delay the Closing, which would include any private action or a similar action brought by a Governmental Entity. Without the prior written consent of the Company, Parent shall not withdraw any filing made under any Regulatory Law (provided, however, that Parent may “withdraw and refile” its initial filing under the HSR Act one time in the manner prescribed by 16 C.F.R. § 803.12(c) without the Company’s prior written consent), and without the prior written consent of the other party (which shall not be unreasonably delayed, conditioned or withheld) each of Parent and the Company shall not enter into any agreement with any Governmental Authority Entity not to consummate the Transactions, except with the prior written consent or to delay consummation of the transactions contemplated by this Agreement. Parent and the Company shall use their respective reasonable best efforts to certify substantial compliance with any so-called “Second Request” issued by the FTC or DOJ or equivalent request from any other Parties. The applicable Governmental Entity within 120 calendar days following the issuance of such a request; provided, further, that Parent shall have a duty to agree, prior to the End Date, to any structural or conduct relief related to the assets or businesses of the Parent or its Affiliates, or the Company will pay all filing fees or its Affiliates, required to satisfy the conditions set forth in connection clauses (b)(i), (b)(ii) and (b)(iii) of Annex I (in the case of (b)(iii), solely with respect to Regulatory Laws) and, at the HSR Act when due request of the Company, to defend through litigation, including through appeals, any claims asserted in any court (including, but not limited to, the FTC’s administrative court and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expensesthe Canadian Competition Tribunal) by any Governmental Entity or other Person challenging the transactions contemplated by this Agreement under Regulatory Laws. Notwithstanding the foregoing and anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or neither Parent nor the Company nor any of its their respective Affiliates shall be required to, and the Company shall not, and shall cause the Company Subsidiaries not to, without the prior written consent of Parent, become subject to, consent to or offer or agree to (i) sellto, license or otherwise dispose oftake any action with respect to, any requirement, condition, limitation, understanding, agreement or order that would have, or hold separate would reasonably be expected to have, individually or in the aggregate, a material adverse effect on Parent and agree its Subsidiaries (including the Surviving Corporation and its Subsidiaries), taken as a whole after giving effect to sellthe Closing, license or otherwise dispose ofbut, any entities or assets in each case, measured on a scale relative to the size of the Company and the Company Subsidiaries, taken as a whole, prior to the Closing. Notwithstanding the foregoing and anything to the contrary in this Agreement, in no event will the Company, Parent or any of their respective Subsidiaries be required to effect any remedy, requirement, condition, limitation, understanding, agreement or order, or take any entity or asset action with respect thereto, pursuant to this Section 7.03(c) that is not conditioned upon the Closing occurring.
(d) Parent and the Company shall be mutually responsible for (i) all substantive communications with any applicable Governmental Entity; and (ii) all strategic decisions regarding the HSR Act and other applicable Regulatory Law approvals.
(e) Each of such Party or Parent and the Company shall not, and shall not permit any of its respective Affiliates to, acquire or make any non-passive investment in any Person or any other Person division or (ii) terminateassets thereof that would, amend or assign any existing relationships and contractual rights would reasonably be expected to, prevent or obligations. No Party shall agree to result in a material delay in the satisfaction of any of the measures conditions forth in the foregoing sentence with respect to any other Party or any clauses (b)(i) through (iii) of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company Annex I (in the case of Acquiror) or Acquiror (in the case of the Companyb)(iii), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayedRegulatory Laws).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to obtain the PIPE Investments Financing on the terms and subject to the conditions set forth in the Subscription Agreements and (iii) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as contemplated by Section 8.04of the Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Effective Time, AHAC)). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities Entities necessary, proper or other Persons necessary advisable to consummate the Transactions and the transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. The Company shall bear the costs incurred in connection with obtaining such Consents, including the HSR Act filing fee; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (Ai) make all required any appropriate filings pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event within 10 ten (10) Business Days) following the Original date of this Agreement Date and (Bii) respond as promptly as reasonably practicable to any requests by any Governmental Authority Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror AHAC shall promptly inform the Company of any communication between Acquirorany AHAC Party, on the one hand, and any Governmental AuthorityEntity, on the other hand, and the Company shall promptly inform Acquiror AHAC of any communication between either the Company, on the one hand, and any Governmental AuthorityEntity, on the other hand, in either case, regarding any of the Transactions transactions contemplated by this Agreement or any Transaction AgreementAncillary Document. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of AHAC and the other PartiesCompany. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing Nothing in this Section 8.01 or any other provision of this Agreement 5.2 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities entities, assets or assets facilities of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or Company, (ii) terminate, amend or assign any existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures in the foregoing sentence with respect to any other Party or any of its AffiliatesParty, except with each of AHAC’s and the other Parties’ Company’s prior written consent. During .
(b) From and after the Interim Perioddate of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, Acquirorthe AHAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany AHAC Party) or Acquiror AHAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement or the Transaction AgreementsAncillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, telephone with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in the case of Acquiror and the Companyany AHAC Party, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquirorthe Company, the opportunity to attend and participate AHAC in such meeting or discussionadvance.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 5.2 conflicts with any other covenant or agreement in this Agreement Article 5 that is intended to specifically address any certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyconflict.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Samples: Business Combination Agreement (Alpha Healthcare Acquisition Corp.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Purchaser and the Parties Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX V).
(b) Each of Purchaser and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties Company shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtain consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by this Agreement (collectively, the Transaction Agreements“Governmental Approvals”). Each Party shall (A) make all required filings Purchaser and the Company has made an appropriate filing pursuant to the HSR Act with respect to the Transactions promptly (and transactions contemplated by this Agreement. In addition, the Company has or will make appropriate filings under applicable law with each state public utility commission or similar agency with respect to which a notice filing or approval filing is required in any event within 10 Business Days) following connection with the Original transactions contemplated by this Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror Purchaser shall promptly inform provide such assistance in connection therewith as the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, may reasonably request. Purchaser and the Company shall promptly inform Acquiror the other party hereto of any communication between either Purchaser or the Company, on the one handas applicable, and any Governmental Authority, on the other hand, in either case, Entity regarding any of the Transactions or any Transaction transactions contemplated by this Agreement. Without limiting the foregoing, (x) Purchaser, the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, Company and (y) each Party and its their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority Entity not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The party hereto.
(c) Purchaser and the Company will pay all filing fees in connection with have the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity right to review in advance, and consider to the extent practicable each will consult with the other, in good faith the views of the other in connection with, any proposed written communication each case subject to any Governmental Authority applicable laws relating to the Transactions or exchange of information, all the Transaction Agreements. Each information relating to such other party, and any of the Parties agrees not to participate their respective Affiliates, which appears in any substantive meeting filing made with, or discussionwritten materials submitted to, either in person any third party or by telephone, with any Governmental Authority Entity in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited transactions contemplated by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement. In exercising the foregoing right, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case each of the Company, or any respective Representatives of the Company (in their capacity parties hereto agrees to act reasonably and as a representative of the Company)promptly as reasonably practicable. Acquiror and the Company shall each (i) Each party hereto agrees to keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights party apprised of the Company, set forth status of matters referred to in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)this Section 4.7.
(d) If Acquiror In the event any claim, action, suit, investigation or other Proceeding by any Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, each of Purchaser and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders agree to be held cooperate and shall use its reasonable best efforts to obtain approval from defend against such stockholders prior claim, action, suit, investigation or other Proceeding and, if an injunction or other order is issued in any such action, suit or other Proceeding, to use commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the Acquiror Termination Date consummation of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 transactions contemplated hereby.
(such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (iie) Acquiror Purchaser and the Company shall cooperate not, and shall cause their controlled Affiliates (which, for purposes of this Section 4.7(e), shall exclude any portfolio company of Purchaser) not to, acquire or agree to acquire, by merging with the preparationor into or consolidating with, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval or by purchasing a portion of the Extension Proposal assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests, if the entering into of a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to: (i) impose any delay in accordance with the same effortsobtaining of, noticeor increase (in any non-de minimis respect) the risk of not obtaining, consent and other cooperation standards any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable to waiting period; (ii) increase (in any non-de minimis respect) the preparation, filing and mailing risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, transactions contemplated by this Agreement; (iii) increase the risk (in any non-de minimis respect) of not being able to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit remove any such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and order on appeal or otherwise; or (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on delay or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to prevent the consummation of a business combination in accordance with the foregoing sentencetransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (GTT Communications, Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under Applicable Laws and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX and Article 10, (iiy) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated hereby, and (z) obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NYSE). Subject to Section 12.06, the costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including HSR Act filing fees and any filing fees in connection with any other Antitrust Law, and any fees associated with obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NYSE, shall be paid by VGAC (if to be paid prior to the Transaction AgreementsClosing) or by Newco (if to be paid at or after the Closing). Each Party shall make or cause to be made (Aand not withdraw) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond transactions contemplated hereby as promptly as reasonably practicable after the date hereof. The Parties shall request early termination of the waiting period in any filings submitted under the HSR Act and shall use commercially reasonable efforts to supply as promptly as practicable to any requests by any the appropriate Governmental Authority for Authorities additional information and documentary material that may be requested pursuant to the HSR ActAct or any other Antitrust Law. Acquiror (The foregoing notwithstanding, nothing herein shall promptly inform require the Company to incur any liability or expense (other than de minimis costs and expenses) or subject itself or its business to any imposition of any communication between Acquiror, limitation on the one handability to conduct its business or to own or exercise control of its assets or properties.)
(b) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under Applicable Law and obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NYSE.
(c) Each Party shall, in connection with the Agreement and the transactions contemplated hereby, to the extent permitted by Applicable Law: (i) promptly notify the other Parties of, and if in writing, furnish the other Parties with copies of (or, in the case of oral communications, advise the other parties hereto of) any material substantive communications from or with any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of (ii) cooperate in connection with any proposed substantive written or oral communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of and permit the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity Parties to review and discuss in advance, and consider in good faith the views view of the other Parties in connection with, any proposed substantive written or oral communication to with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees Authority, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental Authority, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant or agreement shall govern Parties’ outside legal counsel with copies of all filings and control solely to the extent of communications between it and any such conflict Governmental Authority and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority; provided that materials required to be provided pursuant to this Section 9.01(c) may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iiiB) to the extent required remove references to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceprivileged information.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use commercially reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between Acquirorany SPAC Party, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting The Company and SPAC will each pay 50% all filing fees in connection with the foregoingHSR Act, the Continuing Membership Application or other materials contemplated by this Section 8.01(a), and such fees shall constitute Company Transaction Expenses or SPAC Transaction Expense, as applicable.
(b) Each Party shall use (i) its respective commercially reasonable efforts to make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the date of this Agreement and (ii) shall respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Notwithstanding anything to the contrary in this Section 8.01, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActAct (to the extent early termination is then available), and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. .
(c) The Company will pay all filing fees shall use (i) its commercially reasonable efforts to prepare and file, or cause to be prepared and filed, the Continuing Membership Application in connection with the HSR Act when due Transactions promptly (and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to in any event within ten (10) Business Days) following the contrary in date of this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminateshall provide SPAC with an opportunity to review and comment upon such application (which comments the Company shall consider in good faith and, amend to the extent any such comments are reasonable and relate to SPAC or assign any existing relationships the Transactions, the Company shall incorporate such comments into the Continuing Membership Application). SPAC shall use its commercially reasonable efforts to cooperate with the Company in preparing the Continuing Membership Application, including by promptly making available additional information relating to its business, assets, properties, or ownership as may be requested by FINRA and contractual rights by taking such other actions requested by FINRA in connection with the Continuing Membership Application. The Parties shall respond as promptly as practicable to all requests or obligations. No Party shall agree to any of inquiries received from FINRA for additional documentation or information in connection with the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. Continuing Membership Application.
(d) During the Interim Period, Acquirorthe SPAC Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirorany SPAC Party) or Acquiror SPAC (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and SPAC, the Company, or, in the case of the Company, SPAC, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and SPAC, the Company, or, in the case of either Company or Acquirorthe Company, SPAC, the opportunity to attend and participate in such meeting or discussion.
(be) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror the SPAC Parties or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(cf) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, any of the SPAC Parties or any of its their respective Representatives (in their capacity as a representative of Acquirora SPAC Party) or, in the case of the Company, Company or any of its Subsidiaries, any of their respective Representatives of the Company (in their capacity as a representative of a member of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in In no event shall Acquiror the Company or SPAC settle or compromise any Transaction Litigation without the prior written consent of SPAC or the Company Company, respectively (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions contemplated by this Agreement (including (i) the satisfaction of the closing conditions set forth in Article IX and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04IX). Without limiting the generality of the foregoing, each of the Parties shall use commercially reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make any and all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date date of this Agreement, (B) make any required foreign direct investment or competition filings, if any, as soon as reasonably practicable following the date of this agreement, and (BC) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Actrequested. Acquiror shall promptly inform the Company Parties of any communication between Acquirorany Acquiror Party, on the one hand, and any Governmental Authority, on the other hand, and the Company Parties shall promptly inform Acquiror of any communication between either CompanyCompany Party, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company XxxxxXxxxxxx.xxx, Xxxxxxxxxxxx.xxx and Acquiror will pay all equally split the filing fees in connection with the HSR Act when due due, and the actual amounts of such fees paid by Acquiror shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to , the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset actual amount of such Party or any fees paid by XxxxxXxxxxxx.xxx shall be deemed XxxxxXxxxxxx.xxx Transaction Expenses, and the actual amount of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party such fees paid by Xxxxxxxxxxxx.xxx shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consentbe deemed Xxxxxxxxxxxx.xxx Transaction Expenses. During the Interim Period, Acquirorthe Acquiror Parties, on the one hand, and the CompanyCompany Parties, on the other hand, shall give counsel for the Company XxxxxXxxxxxx.xxx and Xxxxxxxxxxxx.xxx (in the case of Acquirorany Acquiror Party) or Acquiror (in the case of the CompanyCompany Parties), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror Acquiror, XxxxxXxxxxxx.xxx and Xxxxxxxxxxxx.xxx, or, in the Companycase of either Company Party, Acquiror, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror Acquiror, XxxxxXxxxxxx.xxx and the CompanyXxxxxxxxxxxx.xxx, or, in the case of either Company or Party, Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall the Acquiror Parties or the Company Parties be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the either Company Party or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the CompanyCompany Parties, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror, any of the Acquiror Parties or any of its their respective Representatives (in their capacity as a representative of Acquiroran Acquiror Party) or, in the case of the CompanyCompany Parties, or any respective Representatives member of the Company Group or any of their respective Representatives (in their capacity as a representative of a member of the CompanyCompany Group). Acquiror and the Company Parties shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, (i) Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the CompanyCompany Parties, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction LitigationLitigation commenced against any of the Acquiror Parties or any of their respective Representatives; provided, however, that in no event shall Acquiror settle or compromise any such Transaction Litigation without the prior written consent of the Company XxxxxXxxxxxx.xxx and Xxxxxxxxxxxx.xxx (not to be unreasonably withheld, conditioned or delayed). Without ; and (ii) the applicable Company Party shall, subject to and without limiting the generality covenants and agreements, and the rights of the foregoingAcquiror Parties, set forth in no event shall the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation commenced against such Company Party or any member of its Subsidiaries Company Group or any of their respective Representatives Representatives; provided, however, that in no event shall such Company Party settle or compromise any such Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained conditioned or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of Parent and the Parties Company shall use their respective reasonable best efforts to promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective as promptly as reasonably practicable after the Transactions (date hereof the transactions contemplated by this Agreement, including (i) preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any Governmental Entity in order to consummate the satisfaction of transactions contemplated by this Agreement (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts as promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of party hereto agrees to make all filings required by the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions Securities Act and the transactions contemplated by Exchange Act and any other applicable federal or state securities Law (the Transaction Agreements“Securities Laws”). Each Party party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond supply as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material or documentation that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussionSecurities Laws.
(b) Notwithstanding anything to the contrary in the Without limiting any other obligation under this Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in during the period from the date of this Agreement that is intended to specifically address any subject matteruntil the Closing Date, then such other covenant or agreement shall govern each of Parent and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company shall not, and shall cause its Subsidiaries and Affiliates not to take or agree to take any action that would reasonably be obligated expected to bear prevent the parties from obtaining any expense or pay any fee or grant any concession Governmental Approval in connection with obtaining any consentsthe transactions contemplated by this Agreement, authorizations or approvals pursuant to prevent or materially delay or impede the terms consummation of any Contract to which the Company or its Subsidiaries is a partytransactions contemplated herein.
(c) During the Interim Period, Acquiror, on the one handThe Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other occurrence, or failure to occur, of any event which occurrence or failure to occur has resulted in or would reasonably informed regarding be expected to result in the failure to satisfy or be able to satisfy any Transaction Litigationof the conditions specified in Article 7 and such written notice shall specify the condition which has failed or will fail to be satisfied, (ii) give any written notice from any Person alleging that the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise consent of any such Transaction Litigation and reasonably cooperate with the other Person is or may be required in connection with the defense, settlement transactions contemplated by this Agreement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider any written notice from any Governmental Entity in good faith connection with the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigationtransactions contemplated by this Agreement; provided, however, that in no event the delivery of any notice pursuant to this Section 6.2(c) shall Acquiror settle not limit or compromise any Transaction Litigation without otherwise affect the prior written consent of remedies available hereunder to Parent or the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)Company.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Holdings and Parent shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under applicable Laws to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (i) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 7 and (ii) using reasonable best efforts to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any obtaining consents of any all Governmental Authorities or other Persons Entities necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreementshereby). Each Party shall (A) make all required filings an appropriate filing, if necessary, pursuant to the HSR Act (which filing shall specifically request early termination of the waiting period prescribed by the HSR Act) with respect to the Transactions transactions contemplated by this Agreement promptly (and in any event event, within 10 two (2) Business DaysDay) following after the Original Agreement Date date of this Agreement, and (B) respond shall comply as promptly as reasonably practicable to with any requests by request from any Governmental Authority Government Entity for additional information and or documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions Act or any Transaction Agreementsimilar Antitrust Law. Without limiting the foregoing, (xi) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR ActParent, Merger Sub and (y) each Party and its respective their Affiliates shall not extend not, directly or indirectly, take any action that has or may have the effect of extending any waiting period, review period or comparable period under the HSR Act or any other applicable Antitrust Laws or enter into any agreement with any Governmental Authority Entity to delay or not to consummate the Transactionstransactions contemplated hereby, except with the prior written consent of the other Parties. The Company will pay Representative and (ii) Parent and Merger Sub agree to take (and Parent’s and Merger Sub’s “reasonable best efforts” shall expressly include the taking of) any and all filing fees actions that are necessary or advisable or as may be required by any Governmental Entity to expeditiously (and in connection with no event later than the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to Termination Date) consummate the contrary in transactions contemplated by this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to including, but not limited to, (iA) sellselling, license licensing or otherwise dispose disposing of, or hold holding separate and agree agreeing to sell, license or otherwise dispose ofof (x) any entities, assets or facilities of Parent, Merger Sub or their Affiliates, and any entities Group Company after the Closing or assets of the Company or (y) any of their respective Subsidiaries or any entity entity, facility or asset of such Party Parent, Merger Sub or any of its their Affiliates before or any other Person after the Closing, (B) terminating, amending or (ii) terminate, amend or assign any assigning existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party) and (C) amending, assigning or obligationsterminating existing licenses or other agreements (other than terminations that would result in a breach of a license or such other agreement with a third party) and entering into such new licenses or other agreements. No Party Parent and Merger Sub shall agree have the responsibility for all filing fees associated with filings pursuant to any the HSR Act. Within ten (10) days following the date of this Agreement, Holdings shall use commercially reasonable efforts to submit all notices and other documents related thereto as required under the National Industrial Security Program Operating Manual, codified at 32 C.F.R. part 117, informing the Defense Counterintelligence and Security Agency (“DCSA”) or other applicable cognizant security agency of the measures upcoming change in ownership of the foregoing sentence applicable Group Company; provided, that Parent shall timely provide to Holdings for incorporation in such submissions to DCSA all information required for the completion of the SF328 and any other submissions concerning the anticipated post-Closing structure and other information required by DCSA with respect to such submission, or Parent shall provide such information directly to DCSA. At all times until Closing, it shall be Parent’s responsibility to provide all such information and to adopt such standards, procedures and FOCI mitigation plans as may be needed to adequately address any possible concerns regarding Foreign Ownership, Control or Influence associated with Parent or affiliated persons or entities to the satisfaction of DCSA or other applicable cognizant security agency, and Parent shall include Holdings in all communications and meetings with DCSA or other applicable cognizant security agency prior to Closing. The Company will keep Parent informed on a prompt basis of any and all communications with DCSA relating to the prospective change in ownership and all submissions relating thereto, and provide copies of any such written communications with DCSA.
(b) In the event any Proceeding by a Governmental Entity or other Person is commenced which questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the Parties agree to cooperate and use all reasonable efforts to defend against such Proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use all reasonable efforts to have such injunction or other order lifted or vacated, and to cooperate reasonably regarding any other Party or any of its Affiliates, except with each impediment to the consummation of the other Parties’ prior written consenttransactions contemplated hereby. During Notwithstanding anything to the Interim Periodcontrary herein, AcquirorParent shall determine the strategy after consulting in good faith with the Company and after taking the Company’s reasonable views into account, on to be pursued for obtaining and lead the one handeffort to obtain all necessary actions or non-actions and consents from any Governmental Entity or Person, including any related litigation, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company, on the other hand, Group Companies shall give take all reasonably requested actions to support Parent in connection therewith.
(c) The Parties shall permit counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a other Party reasonable opportunity to review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication or other submission to any Governmental Authority Entity relating to the Transactions transactions contemplated by this Agreement; provided that any such submission may be designated as “outside counsel only” and/or redacted to protect valuation or other similar information before sharing with the Transaction Agreementsother party. Each of the The Parties agrees agree not to participate in any substantive meeting or discussion, either in person or by telephone, telephone or videoconference with any Governmental Authority Entity in connection with the Transactions transactions contemplated by this Agreement unless it consults with, in with the case of Acquiror and the Company, other Party in advance and, to the extent not prohibited by such Governmental AuthorityEntity, gives, in gives the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(cd) During the Interim Periodperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to except as required by this Agreement, Parent, Merger Sub and their Affiliates shall not engage in any Transaction Agreements action or enter into any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror transaction or permit any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not action to be unreasonably withheld, conditioned taken or delayed)transaction to be entered into that would materially impair or delay Parent’s or Merger Sub’s ability to consummate the transactions contemplated by this Agreement or perform its obligations hereunder. Without limiting the generality of the foregoing, none of Parent, Merger Sub, their respective Subsidiaries or their respective Affiliates shall acquire (whether by merger, consolidation, stock or asset purchase or otherwise), or agree to so acquire, any amounts of assets of or any equity in any other Person or any business or division thereof, that would reasonably be expected to (i) materially increase the risk of not obtaining any authorizations, consents, orders, declarations or approvals under the HSR Act or any other Antitrust Law or materially increase the risk of not reaching the expiration or termination of any waiting period or comparable period under the HSR Act or similar Antitrust Law, or (ii) materially increase the risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or materially increase the risk of not being able to remove any such order on appeal or otherwise.
(e) Promptly following the date hereof, Holdings shall use commercially reasonable efforts to give all notices and obtain all consents set forth on Schedule 6.3(e), and Parent shall use commercially reasonable efforts to cooperate with the provision of such notices and procurement of such consents; provided, that in no event shall the Company or its Subsidiaries Holdings or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to Group Company be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30incur any liability, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate cost or expense under any Contract in connection with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following obtaining any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceconsent.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (ManpowerGroup Inc.)
Efforts to Consummate. (a) Subject to the terms and conditions herein, each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including (i) the satisfaction of satisfying the closing conditions set forth in Article IX and (ii) using reasonable best efforts consummating any PIPE Financing on the terms and subject to obtain PIPE Investments as the conditions contemplated by Section 8.04in connection therewith). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents Consents of any Governmental Authorities (including any applicable Competition Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror SPAC shall promptly inform the Company of any communication between AcquirorSPAC, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, and the Company shall promptly inform Acquiror SPAC of any communication between either the Company, on the one hand, and any Governmental AuthorityAuthority (including any Competition Authorities), on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if in the event that this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror SPAC or the Company or its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a partyparty or otherwise in connection with the consummation of the Transactions.
(c) During the Interim Period, AcquirorSPAC, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror SPAC, SPAC or any of its Representatives (in their capacity as a representative of AcquirorSPAC) or, in the case of the Company, the Company or any respective Representatives Subsidiary of the Company or any of their respective Representatives (in their capacity as a representative of the Company or any Subsidiary of the Company). Acquiror SPAC and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement)Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, (i) SPAC and the rights of the Company, set forth in the immediately preceding sentence, Company shall jointly control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that Litigation and (ii) in no event shall Acquiror SPAC (or any of its Representatives), on the one hand, or the Company (or any of its Representatives), on the other hand, settle or compromise any Transaction Litigation brought without the prior written consent of the Company other Party (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
Appears in 1 contract
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties Party shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under Applicable Law and regulations to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated hereby (including (ix) the satisfaction satisfaction, but not waiver, of the closing conditions set forth in Article IX 10, (y) obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers and (ii) using reasonable best efforts permits necessary or advisable to obtain PIPE Investments as contemplated by Section 8.04). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with be obtained from any third party or deliver to, as applicable, any consents of any Governmental Authorities and the expiration or other Persons termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the Transactions and the transactions contemplated by hereby, and (z) satisfying (and making commercially reasonable arrangements with third parties in order to satisfy) the Transaction Agreements. Each Party shall (A) make all required filings applicable initial listing requirements of the Qualified Stock Exchange and obtaining approval for listing the Company Ordinary Shares and Company Warrants issued pursuant to this Agreement on a Qualified Stock Exchange). Subject to Section 12.06, the HSR Act costs incurred in connection with respect to the Transactions promptly (and in any event within 10 Business Days) following the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any obtaining such consents of all Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between AcquirorAuthorities, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions such expiration or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all applicable waiting periods under applicable to the Transactions under the HSR ActAntitrust Laws, and (y) each Party and its respective Affiliates shall not extend including any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. The Company will pay all filing fees in connection with any Antitrust Law, and any fees associated with obtaining approval for listing the HSR Act when due Company Ordinary Shares and such fees Company Warrants issued pursuant to this Agreement on a Qualified Stock Exchange, shall be deemed paid 50% by the Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything by BSAQ.
(b) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the contrary transactions contemplated hereby or regulatory filings under Applicable Law and obtaining approval for listing the Company Ordinary Shares and Company Warrants issued pursuant to this Agreement on a Qualified Stock Exchange.
(c) Each Party shall, in this connection with the Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates the Ancillary Agreements and the Transactions, to agree to the extent permitted by Applicable Law: (i) sell, license or otherwise dispose promptly notify the other Parties of, or hold separate and agree to sellif in writing, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of such Party or any of its Affiliates or any other Person or (ii) terminate, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to any other Party or any of its Affiliates, except with each of furnish the other Parties’ prior written consent. During the Interim PeriodParties with copies of (or, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquirororal communications, advise the other Parties of) any material substantive communications from or Acquiror with any Governmental Authority, (ii) cooperate in connection with any proposed substantive written or oral communication with any Governmental Authority and permit the case of the Company), a reasonable opportunity other Parties to review and discuss in advance, and consider in good faith the views view of the other Parties in connection with, any proposed substantive written or oral communication to with any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees Authority, (iii) not to participate in any substantive meeting or discussion, either in person or by telephone, have any substantive communication with any Governmental Authority in connection with the Transactions unless it consults with, in has given the case of Acquiror and the Company, other Parties a reasonable opportunity to consult with it in advance and, to the extent not prohibited permitted by such Governmental Authority, gives, in gives the case of Acquiror and the Company, or, in the case of either Company other Parties or Acquiror, their outside counsel the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreementtherein, (iiv) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then furnish such other covenant or agreement shall govern Parties’ outside legal counsel with copies of all filings and control solely to the extent of communications between it and any such conflict Governmental Authority and (iiv) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with obtaining any consents, authorizations or approvals pursuant to the terms its preparation of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning necessary submissions of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect information to any such Transaction LitigationGovernmental Authority; provided that materials required to be provided pursuant to this Section 9.01(c) may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iiiB) to the extent required remove references to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceprivileged information.
Appears in 1 contract
Samples: Business Combination Agreement (Black Spade Acquisition Co)
Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each of the Parties shall use their respective reasonable best efforts to reasonably promptly take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable under this Agreement and Applicable Laws to consummate and make effective as reasonably promptly as reasonably practicable after the Transactions (date hereof, and in any event no later than the End Date, the Transactions, including (i) preparing as reasonably promptly as practicable all necessary applications, notices, petitions, filings, ruling requests and other documents and to obtain as reasonably promptly as practicable all consents, approvals, clearances, waivers or orders necessary or advisable to be obtained from any Governmental Authority in order to consummate the satisfaction of Transactions (collectively, the closing conditions set forth in Article IX “Governmental Approvals”) and (ii) using reasonable best efforts as reasonably promptly as practicable taking all steps as may be necessary to obtain PIPE Investments as contemplated by Section 8.04)all such Governmental Approvals. Without limiting the generality In furtherance and not in limitation of the foregoing, each of the Parties shall use reasonable best efforts Party agrees to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions promptly within ten (and in any event within 10 10) Business Days) Days following the Original Agreement Date and date of this Agreement, (B) respond as promptly as reasonably practicable make all other required filings pursuant to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable Regulatory Laws with respect to the Transactions under the HSR Actas reasonably promptly as practicable, and (yC) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with the Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental Authority not to consummate the Transactions, except with the prior written consent of the other PartiesParties hereto. The Company will pay Each of Buyer and Seller shall supply as reasonably promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Regulatory Law and use its reasonable best efforts to take all filing fees other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as possible and in any event no later than the End Date.
(b) Each of Buyer and Seller shall, in connection with the actions referenced in Section 6.02 above to obtain all Governmental Approvals under the HSR Act when due and such fees shall be deemed 50% Company Transaction Expenses and 50% Acquiror Transaction Expenses. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 or any other provision of this Agreement obligates any Party or any of its Affiliates to agree to Regulatory Laws, (i) sellcooperate in all respects with each other in connection with any communication, license filing or otherwise dispose ofsubmission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other Party and/or its counsel informed of any communication received by such Party from, or hold separate and agree to sell, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or any entity or asset of given by such Party or any of its Affiliates to, the FTC, the DOJ or any other Person Governmental Authority and of any communication received or (ii) terminategiven in connection with any proceeding by a private party, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to in each case regarding any of the measures Transactions; (iii) consult with each other in advance of any meeting or conference with the foregoing sentence with respect to FTC, the DOJ or any other Party or any of its AffiliatesGovernmental Authority or, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, with any proposed written communication to any Governmental Authority relating to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or proceeding by telephonea private party, with any Governmental Authority in connection with the Transactions unless it consults withother Person, in the case of Acquiror and the Company, in advance and, to the extent not prohibited permitted by the FTC, the DOJ or such other Governmental AuthorityAuthority or other Person, gives, in give the case of Acquiror and the Company, or, in the case of either Company or Acquiror, other Party and/or its counsel the opportunity to attend and participate in such meeting meetings and conferences; and (iv) permit the other Party and/or its counsel to review in advance any submission, filing or discussioncommunication (and documents submitted therewith) intended to be given by it to the FTC, the DOJ or any other Governmental Authority; provided that such materials may be redacted to remove references concerning the valuation of the business of the Company. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall, on behalf of the Parties, control and lead all communications and strategy related to all Governmental Approvals, in each case after consulting and cooperating with and considering in good faith the views of Seller. Buyer and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.02(b) as “Antitrust Counsel Only Material”. Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Buyer or Seller, as the case may be) or its legal counsel.
(bc) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectivelycontained herein, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror parties hereto understand and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed).
(d) If Acquiror and the Company determine in good faith that it is probable agree that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts of any party hereto shall not be deemed to obtain approval from such stockholders prior include: (x) proposing, negotiating, committing to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline and effecting, by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30consent decree, 2023 (such proposed extended deadlinehold separate order, or otherwise, the “Extension Date”sale, divestiture or disposition of such businesses, product lines or assets of Buyer, Seller and such proposaltheir respective Affiliates or (y) otherwise taking or committing to take actions that after Closing would limit Buyer’s and/or its Affiliates’ (including the Company’s) freedom of action with respect to, the “Extension Proposal”)or its or their ability to operate and/or retain, (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval one or more of the Extension Proposal in accordance with the same effortsbusinesses, noticeproduct lines or assets of Buyer, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentenceSeller and/or their respective Affiliates.
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Efforts to Consummate. (a) Subject to the terms and conditions hereinherein provided, each from the date hereof until the earlier of the Parties termination of this Agreement and the Closing Date, the Company shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things reasonably necessary necessary, proper or advisable to consummate and make effective as promptly as reasonably practicable the Transactions transactions contemplated by this Agreement (including (i) the satisfaction satisfaction, but not a waiver, of the closing conditions set forth in Article IX and Section 7.02).
(iib) using reasonable best efforts to obtain PIPE Investments as contemplated by In furtherance of Section 8.045.03(a). Without limiting , the generality of the foregoing, each of the Parties Company shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any consents of any Governmental Authorities or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction Agreements. Each Party shall (A) make all required filings pursuant to the HSR Act with respect to the Transactions promptly (and in any event within 10 twenty (20) Business Days) following after the Original Agreement Date and (B) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act. Acquiror shall promptly inform the Company of any communication between Acquiror, on the one hand, and any Governmental Authority, on the other hand, and the Company shall promptly inform Acquiror of any communication between either Company, on the one hand, and any Governmental Authority, on the other handdate hereof, in either case, regarding any of the Transactions or any Transaction Agreement. Without limiting the foregoing, (x) the Parties agree to request early termination of all waiting periods applicable to the Transactions under the HSR Act, and (y) each Party and its respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except cooperation in good faith with the prior written consent of Parent, make or cause to be made all filings and submissions with the other Parties. The Company will pay all filing fees relevant insurance regulators in connection with the HSR Act when due consummation of the transactions contemplated herein in accordance with and such fees shall be deemed 50% as set forth in Schedule 5.03(b) of the Company Transaction Expenses and 50% Acquiror Transaction Expenses. Disclosure Schedules.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8.01 5.03 or any other provision of otherwise in this Agreement obligates to the contrary, in connection with the Pre-Closing Transactions, the Company shall not be required to seek any Party dividend or any other transfer of its Affiliates surplus from WNFIC to agree WRM America Intermediate Holding Company, Inc. to the extent that it would reasonably be expected to (i) selldelay, license in any material respect, the timing or otherwise dispose oflikelihood of the Closing, (ii) cause the WNFIC Statutory Surplus as of the Closing Date to be less than $7,500,000 or hold separate any greater amount necessary to allow the Company and agree its Affiliates to sellcontinue to operate the business of the Company and its Affiliates if the Closing does not occur or (iii) violate any applicable Law or cause any member of the Board of Directors of WNFIC, license or otherwise dispose of, any entities or assets of the Company or any of their respective Subsidiaries or Affiliates to breach any entity or asset fiduciary duty. For purposes of such Party or any of its Affiliates or any other Person or this Agreement, the term “Pre-Closing Transactions” (iiincluding the phrase “after giving effect to the Pre-Closing Transactions”) terminateshall mean, amend or assign any existing relationships and contractual rights or obligations. No Party shall agree to any of the measures in the foregoing sentence with respect to the dividend or other transfer of any other Party or any of its Affiliates, except with each of the other Parties’ prior written consent. During the Interim Period, Acquiror, on the one hand, and the surplus from WNFIC to WRM America Intermediate Holding Company, on Inc. as contemplated by Annex A, the other hand, shall give counsel for the Company (in the case amount of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Authority relating surplus actually transferred after giving effect to the Transactions or the Transaction Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the Transactions unless it consults with, in the case of Acquiror and the Company, in advance and, to the extent not prohibited by such Governmental Authority, gives, in the case of Acquiror and the Company, or, in the case of either Company or Acquiror, the opportunity to attend and participate in such meeting or discussion.
(b) Notwithstanding anything to the contrary in the Agreement, (i) if this Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) in no event shall Acquiror or the Company be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party.
(c) During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including derivative claims) relating to this Agreement, any Transaction Agreements or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Acquiror or any of its Representatives (in their capacity as a representative of Acquiror) or, in the case of the Company, or any respective Representatives of the Company (in their capacity as a representative of the Company). Acquiror and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation (subject to a customary joint defense agreement), (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, Acquiror shall, subject to and without limiting the covenants and agreements, and the rights of the Company, limitations set forth in the immediately preceding sentence, control the negotiation, defense and settlement of any such Transaction Litigation; provided, however, that in no event shall Acquiror settle or compromise any Transaction Litigation without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed). Without limiting the generality of the foregoing, in no event shall the Company or its Subsidiaries or any of their respective Representatives settle or compromise any Transaction Litigation without Acquiror’s prior written consent (not to be unreasonably withheld, contained or delayed)this Section 5.03.
(d) If Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before March 12, 2023 (the “Acquiror Termination Date”), then (i) Acquiror shall call a special meeting of its stockholders to be held and shall use its reasonable best efforts to obtain approval from such stockholders prior to the Acquiror Termination Date of a proposal to amend the Acquiror Organizational Documents to extend the deadline by which Acquiror is required to consummate the Transactions to a date that is no earlier than June 30, 2023 (such proposed extended deadline, the “Extension Date”, and such proposal, the “Extension Proposal”), (ii) Acquiror and the Company shall cooperate with the preparation, filing and mailing of proxy materials to be sent to Acquiror’s stockholders seeking approval of the Extension Proposal in accordance with the same efforts, notice, consent and other cooperation standards applicable to the preparation, filing and mailing of the Proxy Statement, and other related materials and actions, as set forth in Section 8.02, (iii) to the extent required to obtain approval of the Extension Proposal and to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), Acquiror shall deposit such additional amount of funds to the Trust Account (which deposit shall be funded by a loan from the Sponsor to Acquiror) necessary to obtain approval of the Extension Proposal in a manner that is expected to cause sufficient funds to be retained in the Trust Account as is reasonably expected to be needed to satisfy the conditions set forth in Section 9.01(f), such amount to be determined in good faith by Acquiror after consultation with its advisors, and (iv) and in the event the Extension Proposal is duly approved by the affirmative vote of the holders of the requisite number of Acquiror Common Stock entitled to vote thereon in accordance with the Acquiror Organizational Documents and applicable Law, Acquiror shall promptly thereafter amend the Acquiror Organizational Documents to provide for the extension of the deadline by which Acquiror is required to consummate the Transactions to the Extension Date contemplated by the Extension Proposal. If, following any such approval of the Extension Proposal, Acquiror and the Company determine in good faith that it is probable that the Transactions will not be consummated on or before the Extension Date, Acquiror and the Company shall cooperate in good faith to request and effectuate further amendments to the Acquiror Organizational Documents to provide for additional extensions of the deadline applicable to the consummation of a business combination in accordance with the foregoing sentence.
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Samples: Merger Agreement (Brown & Brown Inc)
