Efforts. (a) The Company shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of the Company, and to make, or cause to be made, all filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 3 contracts

Samples: Purchase Agreement (Coeur D Alene Mines Corp), Purchase Agreement (Coeur D Alene Mines Corp), Purchase Agreement (Coeur D Alene Mines Corp)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, including Section 6.10(b) hereof, each of the parties to this Agreement shall use its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all consents, approvals or waivers from third parties required to be obtained in connection with the Mergers, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, the Company, or any of their respective Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties shall (i) make appropriate filings under the HSR Act within 10 Business Days of the date hereof and file within 20 Business Days of the date hereof any other required filings and/or notifications under other applicable Antitrust Laws identified in Section 4.3(b) of the Company ~~shall cooperate~~ Disclosure Letter and Section 5.3(b) of the Parent Disclosure Letter, with respect to the Mergers and the other transactions contemplated by this Agreement, and use ~~commercially~~ their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under any Antitrust Law, (ii) use their reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) make an appropriate response as promptly as practicable to any request for additional information or documents by a Governmental Entity pursuant to any Antitrust Law and (iv) take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated by this Agreement, ~~including~~including taking all such further action as may be necessary to resolve such objections, ~~without limitation~~if any, ~~commercially reasonable efforts to~~ as any Antitrust Authority may assert under any Antitrust Law (~~i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ other than with ~~the Company required to be obtained by the Company, and (ii) defend against and respond~~ respect to any ~~action~~Action by any stockholder related to this Agreement, ~~suit, proceeding~~ the Mergers or ~~investigation against~~ the ~~Company relating~~ other transactions contemplated by this Agreement) with respect to the transactions contemplated by this Agreement, ~~in each case as are necessary for consummation of the transactions contemplated by this Agreement~~ and to ~~fulfill the conditions the Company is required to fulfill~~ avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the ~~transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts~~ Mergers so as to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including taking all ~~licenses~~such further action as may be reasonably necessary to resolve such objections, ~~permits~~if any, ~~consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ as any Antitrust Authority may assert under any Antitrust Law with ~~each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating~~ respect to the transactions contemplated by this Agreement, and to avoid or eliminate any impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date). In furtherance of the foregoing, Parent shall take any and all actions necessary, including but not limited to (i) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets, or businesses of the Company or Parent or their respective Subsidiaries; (ii) terminating or transferring any existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries; (iii) terminating any venture or other arrangement; (iv) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, or accepting any restriction on Parent’s freedom of action following the Closing; or (v) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each ~~case~~ case, Parent shall enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with any Governmental Entity in connection with any of the foregoing) (each, a “Remedy Action”); provided that notwithstanding the foregoing, including Section 6.10(a) or anything else to the contrary in this Agreement, (1) Parent shall not be required to take any Remedy Actions (or any other action) that would have or be expected to have, individually or in the aggregate, a material adverse effect on Parent (provided that, for purposes of this clause, Parent shall be deemed a consolidated group of entities of the size and scale of a hypothetical company that is one hundred percent (100%) of the size of the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement), taking into account the terms and net proceeds of any divestiture or other disposition of assets and the effects of any other Remedy Action and provided that the parties hereby acknowledge and agree that any Remedy Action that would, or would reasonably be expected to, result in the sale, disposition or other disposing of any drillship shall be deemed for these purposes to have a material adverse effect on Parent and (2) neither the Company nor any of its Subsidiaries shall take or agree to take, or propose to take or agree to take, any Remedy Action without the prior written consent of Parent; provided, further, that the Company and its Subsidiaries shall agree to take any such Remedy Action if directed to do so by Parent, so long as the effectiveness of such Remedy Action is conditioned upon the consummation of the Merger. Parent shall be responsible for all filing fees under any Antitrust Laws and/or any such other laws or regulations applicable to any of the Parent or its Affiliates. Each party shall not (and shall cause its Subsidiaries and Affiliates not to) agree to stay, toll or extend any applicable waiting period under any Antitrust Law, enter into or extend a timing agreement with any Governmental Entity or withdraw or refile any filing under any Antitrust Law, without the prior written consent of the other party (which consent shall not be unreasonably withheld, delayed or conditioned); provided that, notwithstanding the foregoing, Parent may, after consulting in good faith with the Company, withdraw and refile its HSR Act notification (i.e., “pull and refile”) one time in the manner described in 16 CFR § 803.12(c). (c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any Action is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law, each of Parent and the Company shall use their respective reasonable best efforts to (i) oppose or defend against any action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), and/or (ii) take such action as necessary ~~for~~ to overturn any regulatory action by any Governmental Entity to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), including by defending any Action brought by any Governmental Entity in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, in order to resolve any such objections or challenge as such Governmental Entity or private party may have to such transactions under such Antitrust Law so as to permit consummation of the transactions contemplated by this ~~Agreement~~ Agreement, including by taking a Remedy Action, subject, in each case, to clauses (1) and (2) of Section 6.10(b). (d) The parties shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other material actions pursuant to ~~fulfill~~ this Section 6.10, and, subject to applicable legal limitations and the ~~conditions~~ instructions of any Governmental Entity, the Company, on the one hand, and Parent, on the other hand, shall keep each ~~such Purchaser is required~~ other apprised of the status of matters relating to ~~fulfill~~ the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other material communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions; provided, that notwithstanding anything to the contrary contained in this Agreement, if the Company and Parent do not agree on the strategy to implement in connection with obtaining the consents, clearances, approvals and expirations or terminations of waiting periods under applicable Antitrust Laws, then such matters shall be referred to a transaction committee (the “Transaction Committee”) and thereafter the Transaction Committee shall meet and mutually agree on the strategy to be implemented in connection therewith and the Transaction Committee shall exercise final decision making authority over such matters. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications, filings, written communications or submissions (and with respect to any such notification, filing, written communication or submission, any documents submitted therewith) to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, and (y) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information, in which case unredacted copies shall be provided to outside counsel only. Each of the parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated ~~hereby~~by this Agreement unless it consults with the other parties in advance and, to the extent not prohibited or required otherwise by such Governmental Entity, gives the other parties the opportunity to attend and participate. (e) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto agrees that, between the date of this Agreement and the earlier of the Effective Time and the Termination Date, it shall not, and shall ensure that none of its Subsidiaries shall, consummate, enter into any agreement providing for, or announce, any Acquisition Opportunity that would reasonably be expected to materially impede, delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 3 contracts

Samples: Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Noble Corp PLC), Merger Agreement (Diamond Offshore Drilling, Inc.)

Appears in 3 contracts

Samples: Merger Agreement, Merger Agreement (Time Inc.), Merger Agreement (Meredith Corp)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, each of the Company and Parent shall ~~cooperate and~~ use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable after the date of this Agreement, including (i) preparing and filing, in consultation with the other Parties, as promptly as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party, in each case, that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement (including the Station Disposition) (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII). (b) In connection with the Merger and the other transactions contemplated hereby, to the extent requested by Parent, the Parties shall use their reasonable best efforts to consummate the disposition of the Company Stations identified on Section 7.1(b) of the Parent Disclosure Letter in the manner set forth on Section 7.1(b) of the Parent Disclosure Letter and such contracts and assets related thereto as shall be reasonably determined by Parent (such disposition, the “Station Disposition”), whether or not such dispositions are necessary, proper or advisable to obtain the approvals, consents, registrations, permits, authorizations and other confirmations otherwise required to be obtained from any Governmental Authority to consummate and make effective the Merger. Without limiting the generality of the foregoing, the Company shall, and shall cause its Representatives to, cooperate in good faith with Parent and its Representatives and supply Parent and its Representatives with information, and enter into such agreements and documents, necessary or appropriate to facilitate the Station Disposition. Parent shall be entitled to direct, in consultation with the Company, the process for the Station Disposition. Notwithstanding anything to the contrary contained in this Section 7.1(b), none of the Company nor any of its Subsidiaries shall be obligated to consummate a Station Disposition, unless such Station Disposition is contingent upon the Closing. (c) To the extent requested by Parent, the Company shall and shall cause its Subsidiaries to, assign the options under option agreements with the Company Sharing Companies and their equityholders to one or more of Parent’s Affiliates or other designees of Parent, and take such other actions reasonably requested by Parent to cause one or more of the Company Stations licensed to a Company Sharing Company and subject to a Sharing Agreement with the Company or its Subsidiaries to be acquired by one or more of Parent’s Affiliates or other designees, as applicable (each such assignment and/or acquisition, a “Sharing Station Acquisition”). Without limiting the generality of the foregoing, the Company shall, and shall cause its Representatives to, cooperate in good faith with Parent and its Representatives and supply Parent and its Representatives with information, and enter into such agreements and documents, necessary or appropriate to facilitate each Sharing Station Acquisition. Notwithstanding anything to the contrary contained in this Section 7.1(c), none of the Company nor any of its Subsidiaries shall be obligated to consummate a Sharing Station Acquisition, unless such Sharing Station Acquisition is contingent upon the Closing. (d) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall (i) make, as promptly as reasonably practicable appropriate filings of Notification and Report Forms pursuant to the HSR Act with respect to the transactions contemplated by this Agreement~~, including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ ; provided that the filing by each of Parent and the Company of a Notification and Report Form pursuant to the ~~Closing Date~~HSR Act with respect to the Merger shall be made within 10 Business Days of the date of this Agreement, ~~all licenses, permits, consents, approvals, authorizations, qualifications~~ unless a later date is agreed to in writing by both Parent and ~~orders of governmental authorities and parties to contracts with~~ the Company ~~required~~ and (ii) make, as promptly as reasonably practicable, the FCC Applications with respect to the transactions contemplated by this Agreement; provided that the FCC Applications with respect to the Merger shall be ~~obtained~~ made within 20 Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and the Company. Each of the Company and Parent shall supply as promptly as practicable and advisable any additional information and documentary material that may be requested pursuant to the foregoing, and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as practicable. The Company and Parent shall each request early termination of the waiting period with respect to the Merger, the Stations Divestitures and any Sharing Station Acquisitions under the HSR Act. The Company and Parent shall each pay 50% of the filing fees payable under the HSR Act and FCC filing fees by the Company, Parent and each of their Subsidiaries relating to the Merger, irrespective of whether the transactions contemplated by this Agreement are consummated. (iie) ~~defend against~~ Except as prohibited by applicable Law or Order, each of Parent and ~~respond to any action, suit, proceeding or investigation against~~ the Company shall (i) cooperate and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, the FCC or any other similar Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement, (iii) consult with each other prior to taking any material position with respect to the filings under the HSR Act (or any other Competition Law), the Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act (or any other Competition Law), the Communications Act and the FCC Rules and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act (or any other Competition Law), the Communications Act and the FCC Rules; provided that Parent shall be entitled to direct, in consultation with the Company, the timing for making, and approve (such approval not to be unreasonably withheld) the content of, any filings with or presentations or submissions to any Governmental Authority relating to this Agreement or the transactions contemplated hereby and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities relating to this Agreement or the transactions contemplated hereby. (f) The Company and Parent acknowledge that, to the extent reasonably necessary to expedite the grant by the FCC of any application for renewal of any FCC License with respect to any Company Station and thereby to facilitate the grant of the FCC Consent with respect to such Company Station, each of the Company, Parent and their applicable Subsidiaries shall be permitted to enter into tolling agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Company Station in connection with (i) any pending complaints that such Company Station aired programming that contained obscene, indecent or profane material or (ii) any other enforcement matters against such Company Station with respect to which the FCC may permit the Company or Parent (or any of their respective Subsidiaries) to enter into a tolling agreement. (g) If the Closing shall not have occurred for any reason within the original effective periods of the FCC Consent, and neither party shall have terminated this Agreement pursuant to the terms hereof, the Company and Parent shall use their reasonable best efforts to obtain one or more extensions of the effective period of the FCC Consent to permit consummation of the transactions hereunder. Upon receipt of the FCC Consent, the Company and Parent shall use their respective reasonable best efforts to maintain in effect the FCC Consent to permit consummation of the transactions hereunder. No extension of the FCC Consent shall limit the right of the Company and Parent to terminate this Agreement pursuant to the terms hereof. (h) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a)) without the other, (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto. (i) Subject to Section 7.1(j), Parent shall use reasonable best efforts to take action to avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as ~~are~~ to enable the Closing to occur as soon as reasonably practicable, including (i) the prompt use of its reasonable best efforts to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, including (A) the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person, including any Governmental Authority, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions, (B) the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, categories of assets or businesses or other operations or interests therein of Parent or any of its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations) (hereinafter referred to as the “Station Divestitures”) and (C) the proffer and agreement by Parent of its willingness to take such other actions, and promptly to effect such other actions (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations) (each an “Approval Action”), including, in the case of clause (B) and (C), the Approval Actions listed on Section 7.1(i) of the Parent Disclosure Letter, in each case if such action is necessary ~~for~~ or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any Proceeding in any forum or (y) issuance of any Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement by any Governmental Authority and ~~to fulfill~~ (ii) the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and~~ prompt use ~~commercially~~ of its reasonable best efforts to take, in the event that any permanent or ~~cause~~ preliminary Order is entered or issued, or becomes reasonably foreseeable to be ~~taken~~entered or issued, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to in any ~~action, suit,~~ proceeding or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ inquiry of any kind that would make consummation of the transactions contemplated by this Agreement ~~and to fulfill~~ (including the ~~conditions each such Purchaser is required to fulfill~~ Station Divestitures) in accordance with ~~respect to~~ its terms unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated ~~hereby~~by this Agreement (including the Station Divestitures), any and all steps (including the appeal thereof and the posting of a bond) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement. (j) Notwithstanding anything herein to the contrary, nothing set forth in this Section 7.1 or otherwise in this Agreement shall: (i) require, or be construed to require the Company, Parent or any of their respective Subsidiaries to take, or agree to take, any Approval Action, unless such Approval Action shall be conditioned upon the consummation of the Merger; (ii) permit the Company or any of its Subsidiaries to agree or consent to or approve (without the prior consent of Parent, which need only be granted to the extent otherwise required hereunder) any Approval Action; or (iii) require or be construed to require Parent or any of its Subsidiaries to agree to take or consent to the taking of any Approval Actions other than (x) the Approval Actions listed on Section 7.1(i) of the Parent Disclosure Letter and (y) such other Approval Actions (not involving the divestitures of Parent Stations or Company Stations or the modification or termination of Sharing Agreements or related option agreements) that would not reasonably be expected to result in an Approval Material Adverse Effect. (k) For purposes of this Section 7.1, “Approval Material Adverse Effect” means a material adverse effect on the financial condition or results of operations of Parent and its Subsidiaries, taken as a whole (including, after the Closing, the Company and its Subsidiaries).

Appears in 2 contracts

Samples: Merger Agreement (Sinclair Broadcast Group Inc), Merger Agreement (Tribune Media Co)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, including Section 7.1(i), each of the Company and Parent shall ~~cooperate and use commercially reasonable efforts to~~ take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement, including (i) preparing and filing, in consultation with the other Parties, as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain or maintain) all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party, in each case, that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement (including the Station Divestitures) (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, however, that, no party shall be required to pay (and, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), none of the Company or its Subsidiaries shall pay or agree to pay) any fee, penalty or other consideration to any third party (other than any filing fees paid or payable to any Governmental Authority) for any approval, consent, registration, permit, authorization or other confirmation required for the consummation of the transactions contemplated by this Agreement; provided, ~~including~~further, ~~without limitation~~that the Parties agree and acknowledge that, ~~commercially reasonable efforts~~ except as provided in Section 8.1(b), receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing. (b) To the extent mutually agreed by the Parties, the Company shall and shall cause its Subsidiaries to, assign the options under option agreements with the Company Sharing Companies and their equityholders to one or more of Parent’s Affiliates or other designees of Parent, and take such other actions reasonably agreed by the Parties to cause one or more of the Company Stations licensed to a Company Sharing Company and subject to a Sharing Agreement with the Company or its Subsidiaries to be acquired by one or more of Parent’s Affiliates or other designees, as applicable (each such assignment and/or acquisition, a “Sharing Station Acquisition”). Without limiting the generality of the foregoing, the Parties shall, and shall cause their respective Representatives to, cooperate in good faith with each other and their respective Representatives and supply each other and their respective Representatives with information, and enter into such agreements and documents, necessary or appropriate to facilitate each Sharing Station Acquisition. Notwithstanding anything to the contrary contained in this Section 7.1(b), none of the Company nor any of its Subsidiaries shall be obligated to consummate a Sharing Station Acquisition, unless such Sharing Station Acquisition is contingent upon the Closing. (c) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable (i) ~~obtain, prior~~ appropriate filings of Notification and Report Forms pursuant to the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ HSR Act with respect to the transactions contemplated by this Agreement; provided that the filing by each of Parent and ~~orders of governmental authorities and parties to contracts with~~ the Company ~~required~~ of a Notification and Report Form pursuant to the HSR Act with respect to the Merger shall be ~~obtained~~ made within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and the Company, and (iiiii) ~~defend against~~ the FCC Applications with respect to the transactions contemplated by this Agreement; provided that the FCC Applications with respect to the Merger shall be made within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and ~~respond to any action, suit, proceeding or investigation against~~ the Company. Each of the Company and Parent shall supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the foregoing, and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as practicable. The Company and Parent shall each request early termination of the waiting period with respect to the Merger, the Station Divestitures and any Sharing Station Acquisitions, if applicable, under the HSR Act. Parent shall pay 100% of the filing fees payable under the HSR Act, irrespective of whether the transactions contemplated by this Agreement are consummated. (d) Except as prohibited by applicable Law or Order, each of Parent and the Company shall (i) cooperate and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, the FCC or any other similar Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement, (iii) consult with each other prior to taking any material position with respect to the filings under the HSR Act, the Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act, the Communications Act and the FCC Rules and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act, the Communications Act and the FCC Rules; provided that Parent shall be entitled to direct, in consultation with the Company, and approve (such approval not to be unreasonably withheld) the content of, any filings with or presentations or submissions to any Governmental Authority relating to this Agreement or the transactions contemplated hereby and to take the lead in the strategic planning for any meetings with, and the conducting of negotiations with, Governmental Authorities relating to this Agreement or the transactions contemplated hereby. (e) The Company and Parent acknowledge that, to the extent reasonably necessary to expedite the grant by the FCC of any application for renewal of any FCC License with respect to any Company Station and thereby to facilitate the grant of the FCC Consent with respect to such Company Station, each of the Company, Parent and their applicable Subsidiaries shall be permitted to enter into tolling agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Company Station in connection with (i) any pending complaints that such Company Station aired programming that contained obscene, indecent or profane material or (ii) any other enforcement matters against such Company Station with respect to which the FCC may permit the Company or Parent (or any of their respective Subsidiaries) to enter into a tolling agreement. (f) If the Closing shall not have occurred for any reason within the original effective periods of the FCC Consent, and neither party shall have terminated this Agreement pursuant to the terms hereof, the Company and Parent shall use their reasonable best efforts to obtain one or more extensions of the effective period of the FCC Consent to permit consummation of the transactions hereunder. Upon receipt of the FCC Consent, the Company and Parent shall use their respective reasonable best efforts to maintain in effect the FCC Consent to permit consummation of the transactions hereunder. No extension of the FCC Consent shall limit the right of the Company and Parent to terminate this Agreement pursuant to the terms hereof. (g) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a)) without the other, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto. (h) Subject to Section 7.1(i), Parent shall use reasonable best efforts to take actions to avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as ~~are necessary for~~ to enable the Closing to occur as soon as practicable, including (i) the use of reasonable best efforts to avoid the entry of, or the commencement of any Proceeding in any forum that could result in, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, including (A) the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, categories of assets or businesses or other operations or interests therein of Parent or any of its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) (the actions referred to in this clause (A), collectively, the “Station Divestitures”) and (B) the proffer and agreement by Parent of its willingness to take such other actions, and promptly to effect such other actions (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations) (each an “Approval Action”), including, in the case of clauses (A) and (B), the Station Divestitures and Approval Actions listed on Section 7.1(h) of the Parent Disclosure Letter, and (ii) the use of reasonable best efforts to take, in the event that any permanent or preliminary Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the transactions contemplated by this Agreement ~~and to fulfill~~ (including the ~~conditions the Company is required to fulfill~~ Station Divestitures) in accordance with ~~respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take~~its terms unlawful or that would delay, restrain, prevent, enjoin or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for otherwise prohibit consummation of the transactions contemplated by this Agreement (including the Station Divestitures), any and all steps (including the appeal thereof and the posting of a bond) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement. In furtherance of the foregoing, Parent shall take the actions described in Section 7.1(h) of the Parent Disclosure Letter in accordance with the terms thereof. (i) Notwithstanding anything herein to the contrary, nothing set forth in this Section 7.1 or otherwise in this Agreement shall: (i) require, or be construed to require the Company, Parent or any of their respective Subsidiaries to take, or agree to take, any Station Divestiture or Approval Action, unless such Station Divestiture or Approval Action shall be conditioned upon the consummation of the Merger; or (ii) require, or be construed to require Parent or any of its Subsidiaries to agree or propose to take or consent to the taking of any Station Divestitures, Approval Actions or any other actions contemplated by this Section 7.1 other than (x) the Station Divestitures and Approval Actions listed on Section 7.1(h) of the Parent Disclosure Letter or resulting from the failure, if any, to obtain a Permitted Waiver and (y) such other Station Divestitures, Approval Actions or any other actions contemplated by this Section 7.1 that would not, individually or in the aggregate, result in a material adverse effect on Parent and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries), taken as a whole, as they would exist after giving effect to the Merger and to ~~fulfill~~ the ~~conditions each such Purchaser is required~~ Station Divestitures and Approval Actions described on Section 7.1(h) of the Parent Disclosure Letter or resulting from the failure, if any, to ~~fulfill with respect to the transactions contemplated hereby~~obtain a Permitted Waiver.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Tribune Media Co), Agreement and Plan of Merger (Nexstar Media Group, Inc.)

Efforts. (a) ~~The Company shall cooperate and~~ Each of the Parties agrees to use its commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement and to cooperate with the others in connection with the foregoing, including using its commercially reasonable efforts (i) to make promptly any filings that may be required by any Governmental Entity, and to supply promptly any additional information or documentary material that may be requested by a Governmental Entity, if any, (ii) to obtain all other consents, approvals and authorizations that are required to be obtained under any federal, State, local or foreign Law or regulation, including all necessary consents, approvals or waivers from equityholders, (iii) to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties to this Agreement to consummate the transactions contemplated by this Agreement, including the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, (iv) to effect as promptly as practicable all necessary registrations, filings and responses to requests for additional information or documentary material from a Governmental Entity, if any, and (v) to fulfill all conditions to this Agreement. (b) AHD shall use its commercially reasonable efforts to obtain on terms reasonably acceptable to AHD the debt financing contemplated by the Commitment Letter (collectively, the “Financing”), including using commercially reasonable efforts to (i) negotiate definitive agreements with respect to the Financing consistent with the terms and conditions contained in the Commitment Letter, and (ii) satisfy on a timely basis all conditions in such Commitment Letter and definitive agreements. AHD will keep Atlas reasonably apprised on a reasonably current basis of the status of the Financing. (c) Prior to Closing, Atlas shall, and shall cause the Purchased Entities to, and shall use its commercially reasonable efforts to cause the respective officers, employees and advisors, including legal and accounting, of Atlas and the Purchased Entities to, provide to AHD all cooperation reasonably requested by AHD that is reasonably necessary and customary in connection with the Financing (including (i) participation in meetings, drafting sessions, presentations, road shows and due diligence, (ii) using commercially reasonable efforts to furnish AHD and its financing sources with financial statements and other financial and customary pertinent information regarding the Transferred Business, the Purchased Assets, the Purchased Entities and the Assumed Liabilities as may be reasonably requested by AHD to consummate the Financing, (iii) assisting AHD and the financing sources in the preparation of (A) offering documents and other informational and marketing materials and documents for any portion of the Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of AHD and the financing sources for any portion of the Financing, (v) reasonably facilitating the pledging of collateral and execution and delivery of definitive financing documents and customary deliverables, and (vi) using commercially reasonable efforts to obtain accountants’ comfort letters, accountants’ consent letters, legal opinions, surveys, title insurance and other customary documents for a secured financing, as reasonably requested by AHD); provided that such requested cooperation shall not unreasonably interfere with the operation of the Transferred Business or Atlas’s other businesses. AHD shall, promptly upon request by Atlas, reimburse Atlas for all reasonable out-of-pocket costs and expenses incurred by Atlas in connection with the cooperation set forth in this Section 7.1(c) and shall indemnify and hold harmless Atlas from and against any and all Losses resulting from or arising out of the arrangement of the Financing and any information utilized in connection therewith. (d) Subject to applicable ~~laws~~ legal limitations, Atlas and ~~regulations~~ AHD shall promptly notify the other of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by Atlas or AHD (or their respective Representatives), as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Atlas shall have the right to reasonably direct the strategy of the Parties in a manner consistent with the terms of this Agreement with respect to any communications, meetings or proceedings with any Governmental Entity in connection with obtaining all consents, approvals or actions of any Governmental Entity to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 2 contracts

Samples: Transaction Agreement (Atlas Energy, Inc.), Transaction Agreement (Atlas Pipeline Holdings, L.P.)

Appears in 2 contracts

Samples: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)

Appears in 2 contracts

Samples: Merger Agreement, Agreement and Plan of Merger

Efforts. (a) ~~The~~ Subject to the provisions of this Agreement, each of the parties hereto shall use its commercially reasonable efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby; and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract. (b) Subject to the provisions of this Agreement, the Company and Parent shall (i) promptly, but in no event later than 10 days after the date hereof, file any and all Notification and Report Forms required under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) with respect to the Transactions, and use commercially reasonable efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) if required, promptly make an appropriate filing under the European Community Merger Regulation, and use commercially reasonable efforts to obtain a decision from the European Commission allowing the consummation of the Merger and the other transactions contemplated hereby; (iii) use commercially reasonable efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iv) use commercially reasonable efforts to supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity; and (v) use commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated ~~by this Agreement~~hereby, ~~including~~including taking all such further action as may be necessary to resolve such objections, ~~without limitation~~if any, ~~commercially reasonable efforts to (i) obtain~~as the United States Federal Trade Commission, ~~prior to~~ the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation Antitrust Division of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill~~ United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law with respect to the Merger and the other transactions contemplated hereby. (bc) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of material or significant notices or other material or significant communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the 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 material communication to any Governmental Entity. Each ~~Purchaser~~ of the Company and Parent agrees not to participate in any significant substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) Subject to and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective commercially reasonable efforts to ~~take,~~ contest and resist any such action or ~~cause to be taken, all appropriate action required of each such Purchaser,~~ proceeding and to ~~make~~have vacated, lifted, reversed or ~~cause to be made~~overturned any decree, ~~all filings required to be made by each such Purchaser necessary~~judgment, ~~proper~~ injunction or ~~advisable under applicable laws~~ other order, whether temporary, preliminary or permanent, that is in effect and ~~regulations to consummate and make effective~~ that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated by hereby. Notwithstanding the foregoing or any other provision of this Agreement, ~~including~~nothing in this Section 5.7 shall limit a party’s right to terminate this Agreement pursuant to Article VII, so long as such party has, prior to such termination, complied with its obligations under this Section 5.7. (e) Notwithstanding the foregoing or any other provision of this Agreement, the Company shall not, without ~~limitation~~Parent’s prior written consent, ~~commercially reasonable efforts~~ commit to any divestiture transaction or agree to any restriction on its business, and nothing in this Section 5.7 shall (i) ~~obtain~~require Parent to offer, ~~prior~~ accept or agree to (A) dispose or hold separate any part of its or the ~~Closing Date~~Company’s businesses, ~~all licenses~~operations, ~~permits~~assets or product lines (or a combination of Parent’s and the Company’s respective businesses, ~~consents~~operations, ~~approvals~~assets or product lines), ~~authorizations~~(B) not compete in any geographic area or line of business, ~~qualifications~~ and/or (C) restrict the manner in which, or whether, Parent, the Company, the Surviving Corporation or any of their Affiliates may carry on business in any part of the world, unless Parent determines, in its sole reasonable judgment, that such action would not have more than a de minimis adverse impact on the strategic and ~~orders of governmental authorities and parties to contracts with each such Purchaser required~~ other benefits expected to be ~~obtained by each such Purchaser~~ achieved from the Merger and ~~(ii) defend against and respond to any action, suit, proceeding~~ would not have more than a de minimis adverse impact on Parent or ~~investigation against each such Purchaser relating to~~ the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyCompany.

Appears in 2 contracts

Samples: Merger Agreement (Tb Woods Corp), Merger Agreement (Altra Holdings, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall ~~cooperate~~ Parent, Merger Sub, the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof, file any and all Notification and Report Forms required under the HSR Act with respect to the Merger and the other transactions contemplated hereby, and use ~~commercially~~ reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) if required, promptly make an appropriate filing under the ECMR, and use reasonable best efforts to obtain a decision from the European Commission allowing the consummation of the Merger and the other transactions contemplated hereby, (iii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iv) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity, and (v) use reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by ~~this Agreement~~any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without ~~limitation~~limitation (x) proposing, ~~commercially reasonable efforts~~ negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (iy) ~~obtain, prior~~ otherwise taking or committing to take any actions that after the Closing ~~Date~~Date limits the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) or Affiliates’ freedom of action with respect to, ~~all licenses~~or its ability to retain, ~~permits~~one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding product lines or ~~investigation against the Company relating to the transactions contemplated by this Agreement~~assets, in each case as ~~are necessary for consummation~~ may be required in order to avoid the entry of, or 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 Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. (c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the 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 Entity. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) Subject to the rights of Parent in Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to ~~fulfill~~ have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~conditions~~ Merger or any other transactions contemplated hereby. Notwithstanding the ~~Company is required~~ foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to ~~fulfill~~ terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with ~~respect to~~ its obligations under this Section 5.6. (e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated ~~hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take~~thereby, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to including (i) ~~obtain~~the Sxxxxxx Act of 1890, ~~prior~~ the Cxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914, the ECMR and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ any ~~action, suit, proceeding~~ Law governing the direct or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ indirect ownership or control of any of the ~~transactions contemplated by this Agreement~~ operations or assets of the Company and ~~to fulfill~~ its Subsidiaries or (iii) any Law with the ~~conditions each such Purchaser is required to fulfill with respect to~~ purpose of protecting the ~~transactions contemplated hereby~~national security or the national economy of any nation.

Appears in 2 contracts

Samples: Merger Agreement (Court Square Capital Partners II LP), Merger Agreement (Leever Daniel H)

Appears in 2 contracts

Samples: Merger Agreement (Franklin Resources Inc), Merger Agreement (Legg Mason, Inc.)

Efforts. ~~(a) The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall ~~cooperate and~~ use its commercially reasonable efforts to take, or to cause to be taken, all ~~appropriate action required of the Company~~actions, ~~and~~ to ~~make~~file, or cause to be ~~made~~filed, all ~~filings required~~ documents and to do, or to cause to be ~~made by~~ done, and to assist and to cooperate with the ~~Company~~ other parties in doing, all things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make ~~effective~~ effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated ~~by this Agreement~~hereby, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary actions or nonactions, ~~prior to the Closing Date, all licenses, permits~~waivers, consents, clearances, approvals, ~~authorizations~~and expirations or terminations of waiting periods, ~~qualifications and orders of governmental authorities and parties to contracts with~~ including the Company ~~required~~ Approvals and the Parent Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to ~~be obtained by the Company~~obtain an approval, ~~and~~ clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) ~~defend against and respond to~~ the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any ~~action~~lawsuits or other legal proceedings, ~~suit~~whether judicial or administrative, ~~proceeding~~ challenging this Agreement or ~~investigation against~~ the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the Offer, the Top-Up Option or the Merger and the other transactions contemplated ~~by this Agreement~~ hereby and (v) the execution and delivery of any additional instruments reasonably necessary to ~~fulfill the conditions the Company is required to fulfill with respect to~~ consummate the transactions contemplated hereby~~. (b) Each Purchaser~~ . In furtherance of the foregoing, the Company may, but in no event shall ~~cooperate and use commercially reasonable efforts to take~~the Company or any of its Subsidiaries be required to, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, pay prior to the ~~Closing Date~~Effective Time any fee, ~~all licenses~~penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Offer, ~~permits~~the Top-Up Option or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, ~~authorizations~~and expirations or terminations of waiting periods, ~~qualifications~~ including the Company Approvals and ~~orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action~~the Parent Approvals, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyfrom Governmental Authorities.

Appears in 2 contracts

Samples: Merger Agreement (Eos Petro, Inc.), Merger Agreement (Dune Energy Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, the Company, Parent and Offeror shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Offer, including (i) the obtaining of the Specified Approvals and the Offeror Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer and the other transactions contemplated by this Agreement, including by pursuing all avenues of administrative and judicial appeal; and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Offeror shall (i) use ~~commercially~~ all reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; and (ii) use reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated by hereby. (c) The Company, Parent and Offeror shall, cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this ~~Agreement~~Section 4.03, ~~including~~and subject to applicable legal limitations and the instructions of any Governmental Entity, ~~without limitation~~the Company, ~~commercially reasonable efforts to (i) obtain~~on the one hand, ~~prior~~ and Parent and Offeror, on the other hand, shall keep each other apprised on a current basis of the status of matters relating to the ~~Closing Date~~completion of the transactions contemplated thereby, ~~all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ including promptly furnishing the other with copies of ~~governmental authorities and parties to contracts with the Company required to be obtained~~ notices or other communications received by the Company, Parent or Offeror, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Offeror, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that (i) no party shall be responsible for translating any materials in English, Chinese or another language into a different language or for the opportunity of the other party’s counsel to review and comment on materials in any language other than the original language of such materials and (ii) ~~defend against and respond to any action, suit, proceeding or investigation against~~ materials may be redacted (x) by the Company ~~relating~~ to remove proposals from third parties with respect thereto (subject to the Company’s obligations under Section 4.02), (y) by the Company or Offeror as necessary to comply with contractual agreements, and (z) by the Company or Offeror as necessary to address privilege or confidentiality concerns. Each of the Company, on the one hand, and Parent and Offeror, on the other hand, agrees not to participate in any substantive meeting or discussion, either in Person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) If any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of the Company, on the one hand, and Parent and Offeror, on the other hand, shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Offer and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 4.03 shall limit a party’s right to terminate this Agreement pursuant to Article V so long as such party has, prior to such termination, complied with its obligations under this Section 4.03. (e) Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Offer Closing Date, each ~~case as are necessary for~~ of the Company, Parent and Offeror shall not take or agree to take any action that would reasonably be expected to prevent or delay the parties from obtaining any Governmental Approval in connection with the Offer, or to prevent or materially delay or impede the consummation of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~Offer. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 2 contracts

Samples: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each party will use its commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable laws and regulations to consummate the Amalgamation and ~~make effective~~ the other transactions contemplated by this ~~Agreement~~Agreement and the Amalgamation Agreement as soon as practicable after the date hereof, including, without limitation, ~~commercially~~ (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Amalgamation or any of the other transactions contemplated by this Agreement or the Amalgamation Agreement and (ii) taking all steps as may be necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals; provided, however, that efforts in connection with the Financing and the Required Refinancing Indebtedness shall be governed by Section 7.12 and not this Section 7.3. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable, and in any event within 20 Business Days after the execution of this Agreement, and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. (b) Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement and the Amalgamation Agreement under the HSR Act, the Communications Act or any other Regulatory Law (as defined below), (i) cooperate in all respects and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other party to have a reasonable ~~efforts~~ opportunity to review in advance and comment on drafts of filings and submissions; (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), the FCC, CFIUS or any other Governmental Entity, by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement and the Amalgamation Agreement, provided, however, that materials may be redacted (x) to remove references concerning the valuation of Parent, Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns; and (iii) permit the other party to review any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with, the DOJ, the FTC, the FCC, CFIUS, or any other Governmental Entity, provided, however, that materials may be redacted (x) to remove references concerning the valuation of Parent, Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns, or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the DOJ, the FTC, the FCC, CFIUS or any other applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate in such meetings, substantive telephone calls and conferences. For purposes of this Agreement, “Regulatory Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the Communications Act, Section 721 of the Defense Production Act , and all other national, federal or state, domestic or foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to (i) ~~obtain~~prohibit, ~~prior to~~ restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or affecting competition or market conditions through merger, ~~all licenses~~acquisition or other transaction, ~~permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and~~ (ii) ~~defend against~~ regulate telecommunications businesses, or (iii) regulate foreign investment. In furtherance and ~~respond~~ not in limitation of the covenants of the parties contained in Section 7.3(a) and this Section 7.3(b), each party hereto shall use its reasonable best efforts to ~~any action~~resolve objections, ~~suit~~if any, ~~proceeding or investigation against the Company relating~~ as may be asserted with respect to the transactions contemplated by this Agreement and the Amalgamation Agreement under any Regulatory Law. Notwithstanding anything to the contrary contained in this Agreement, Parent shall not be required to agree to any terms, conditions or modifications (including Parent, the Company or any of their respective Subsidiaries having to cease operating, sell or otherwise dispose of any assets or business (including the requirement that any such assets or businesses be held separate)) with respect to obtaining the expiration or termination of any waiting period or any consents, permits, waivers, approvals, authorizations or orders in ~~each case as are necessary for~~ connection with the Amalgamation or the consummation of the transactions contemplated by this Agreement and the Amalgamation Agreement that would result in, or would be reasonably likely to ~~fulfill~~ result in, either individually or in the ~~conditions~~ aggregate, a material adverse effect on (x) the business or operations of the Company ~~is required to fulfill with respect~~ and its Subsidiaries, taken as a whole, (y) Parent and its Subsidiaries, taken as a whole (assuming Parent and its Subsidiaries, taken as a whole, are the size of the Company and its Subsidiaries, taken as a whole), or (z) Parent and its Subsidiaries, taken as a whole, after giving effect to the ~~transactions contemplated hereby.~~ Amalgamation (~~b) Each Purchaser shall cooperate~~ assuming Parent and ~~use commercially reasonable efforts to take~~its Subsidiaries, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtaintaken as a whole, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating giving effect to the ~~transactions contemplated by this Agreement~~Amalgamation, ~~in each case as~~ are ~~necessary for consummation~~ the size of the ~~transactions contemplated by this Agreement~~ Company and its Subsidiaries, taken as a whole, prior to ~~fulfill the conditions each such Purchaser is required to fulfill with respect~~ giving effect to the ~~transactions contemplated hereby~~Amalgamation).

Appears in 2 contracts

Samples: Amalgamation Agreement (Global Crossing LTD), Agreement and Plan of Amalgamation (Level 3 Communications Inc)

Efforts. (a) ~~The Company~~ Subject to Section 5.03(b), each Party shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required~~ things necessary, proper or advisable, to the extent permitted by Applicable Law, to cause the conditions in Article VII to be ~~made by~~ satisfied and to consummate the ~~Company~~ Transactions as promptly as practicable and in any event prior to the End Date, including making, as soon as reasonably practicable after the date hereof, all registrations, declarations, notices, reports, submissions, applications or other filings (collectively, “Filings”) to or with, and using reasonable best efforts to obtain all consents, approvals, waivers, licenses, permits, franchises, authorizations or Orders (collectively, “Consents”) of, Governmental Entities that are necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate the Transactions. In addition, each of Titanium and ~~make effective the transactions contemplated by this Agreement, including, without limitation, commercially~~ Silver shall use reasonable best efforts to ~~(i) obtain~~obtain all Consents of Persons other than Governmental Entities that are necessary, ~~prior~~ proper or advisable to consummate the ~~Closing Date~~Transactions; provided, ~~all licenses~~however, ~~permits~~that none of Titanium, ~~consents, approvals, authorizations, qualifications and orders~~ Silver nor any of ~~governmental authorities and parties to contracts with the Company~~ their respective Subsidiaries shall be required to make, or commit or agree to make, any concession or payment to, or incur any liability to, any such non-Governmental Entity to obtain any such Consent. The Parties shall supply as promptly as reasonably practicable any additional information and documentary material that may be ~~obtained~~ reasonably requested by ~~the Company~~any Governmental Entities, ~~and (ii) defend against and respond to~~ including in connection with any ~~action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ of the ~~transactions contemplated by this Agreement and~~ foregoing Filings or to ~~fulfill~~ determine whether any such Filings are necessary, proper or advisable to consummate the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~Transactions. (b) ~~Each Purchaser~~ In furtherance of Section 5.03(a), (i) each of Silver and Titanium shall ~~cooperate~~ defend any Action commenced by any Governmental Entity in connection with the Transactions and ~~use commercially reasonable efforts to take,~~ (ii) Silver shall take or cause to be taken, ~~all appropriate action required of each such Purchaser, and to make,~~ do or cause to be ~~made~~done, ~~all filings required~~ propose, negotiate, commit to, agree to ~~be made by each such Purchaser necessary~~and effect (A) the sale, ~~proper~~ divestiture, lease or ~~advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement~~other disposition of any assets, ~~including~~businesses or properties of Silver or Titanium or any of their respective Subsidiaries, ~~without limitation, commercially reasonable efforts to~~ (iB) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any other action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.,

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Taubman Centers Inc), Agreement and Plan of Merger (Taubman Centers Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Xxxxxx Parties shall cause the other Xxxxxx Group Entities to, use their commercially reasonable efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby. In addition, Parent shall use its reasonable best efforts to obtain the Funding in accordance with the Funding Commitments. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Xxxxxx Parties and the Parent Parties shall (i) if required, as promptly as practicable after the date hereof, make their respective filings and thereafter make any other required submissions under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, 15 U.S.C. §18a, as amended (the “HSR Act”), (ii) use commercially reasonable efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use commercially reasonable efforts to take, or to cause to be taken, all ~~appropriate action required of the Company,~~ other actions and to ~~make~~do, or to cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the HSR Act, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as defined herein) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, use commercially reasonable efforts to keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ including to the ~~Closing Date~~extent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Xxxxxx Parties or any of their Subsidiaries or the Parent Parties, ~~all licenses~~as the case may be, ~~permits~~from any third party and/or any Governmental Entity with respect thereto. (c) Subject to the rights of the Parent Parties in Section 5.11, ~~consents~~and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, ~~approvals~~if any administrative or judicial action or proceeding, ~~authorizations~~including any proceeding by a private party, ~~qualifications and orders of governmental authorities and parties to contracts with the Company required~~ is instituted (or threatened to be ~~obtained by~~ instituted) challenging the ~~Company, and (ii) defend against and respond to~~ Merger or any ~~action, suit, proceeding or investigation against the Company relating to the transactions~~ other transaction contemplated by this Agreement, in each ~~case as are necessary for consummation~~ of the ~~transactions contemplated by this Agreement and to fulfill~~ Xxxxxx Parties or the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser~~ Parent Parties shall cooperate in all respects with each other and shall use their respective commercially reasonable efforts to ~~take~~contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6. (d) The Parent Parties and the Xxxxxx Parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.6 as “Regulatory Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside regulatory counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials (the Parent Parties or the Xxxxxx Parties as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 5.6, materials provided to the other party or its outside counsel may be redacted to remove references concerning the valuation of the Common Units or the business of the Xxxxxx Group Entities. For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or ~~cause to be taken~~the consent or approval of, ~~all appropriate action required of each such Purchaser, and to make~~any Governmental Entity, or that otherwise may cause ~~to be made~~any restriction, ~~all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws~~ in connection with the Merger and ~~regulations to consummate and make effective~~ the transactions contemplated ~~by this Agreement~~thereby, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the Xxxxxxx Act of 1890, ~~prior~~ the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ Law governing any of the ~~transactions contemplated by this Agreement~~ material operations or assets of the Partnership and ~~to fulfill~~ its Subsidiaries or (iii) any Law with the ~~conditions each such Purchaser is required to fulfill with respect to~~ purpose of protecting the ~~transactions contemplated hereby~~national security or the national economy of any nation.

Appears in 2 contracts

Samples: Merger Agreement (Hiland Holdings GP, LP), Merger Agreement (Hiland Partners, LP)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions herein provided for, and subject to Section 6.10 hereof, each of the parties hereto agrees to use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all appropriate ~~action required of the Company~~action, and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, ~~including, without limitation, commercially~~ including using its reasonable best efforts to ~~(i) obtain~~obtain all necessary opinions, ~~prior~~ waivers, consents and approvals and effect all necessary registrations and filings. In case at any time after the Effective Time any further action is necessary or desirable to carry out the ~~Closing Date~~purposes of this Agreement, the proper officers and directors of each party to this Agreement shall take all ~~licenses~~such necessary action. Without limiting the foregoing, ~~permits, consents, approvals, authorizations, qualifications and orders~~ each of ~~governmental authorities and parties to contracts with the Company required to be obtained by~~ the Company, Parent and ~~(ii) defend against~~ the Purchaser shall, and ~~respond to any action, suit, proceeding or investigation against~~ the Company ~~relating~~ shall cause each of its subsidiaries to, make all necessary filings with Governmental Entities as promptly as practicable in order to ~~the transactions contemplated by this Agreement, in each case as are necessary for~~ facilitate prompt consummation of the transactions contemplated by the Offer and this ~~Agreement~~ Agreement. In addition, each of Parent, the Purchaser and ~~to fulfill the conditions~~ the Company is will use its reasonable best efforts (including, without limitation, payment of any required fees) and will cooperate fully with each other to ~~fulfill~~ (i) comply as promptly as practicable with ~~respect~~ all governmental requirements applicable to the transactions contemplated ~~hereby. (b) Each Purchaser shall cooperate~~ by the Offer and ~~use commercially reasonable efforts to take~~this Agreement, ~~or cause to be taken, all appropriate action required~~ including the making of ~~each such Purchaser, and to make, or cause to be made,~~ all filings ~~required to be made by each such Purchaser necessary,~~ necessary or proper ~~or advisable~~ under applicable laws and regulations to consummate and make effective the transactions contemplated by the Offer and this Agreement, including, ~~without limitation~~but not limited to, ~~commercially reasonable efforts~~ cooperation in the preparation and filing of the Offer Documents, the Schedule 14D-9 and any actions or filings related thereto, the Proxy Statement or other foreign filings and any amendments to ~~(i) obtain~~any thereof, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond~~ obtain promptly all consents, waivers, approvals, authorizations or permits of, or registrations or filings with or notifications to (any ~~action~~of the foregoing being a "Consent"), ~~suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are~~ any Governmental Entity necessary for the consummation of the transactions contemplated by the Offer and this Agreement. Subject to the Confidentiality Agreement, Parent and the Company shall furnish to one and other (and to the Purchaser) such necessary informa- tion and reasonable assistance as Parent, the Purchaser or the Company may reasonably request in connection with the foregoing. In addition, if at any time prior to the Effective Time any event or circumstance relating to either the Company or Parent or the Purchaser or any of their respective subsidiaries, should be discovered by the Company or Parent, as the case may be, and which should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance. (b) Without limiting Section 6.3(a), Parent, the Purchaser and the Company shall each (i) promptly make or cause to be made the filings required of such party under the HSR Act with respect to the Offer and the Merger; (ii) take any and all steps necessary to avoid or eliminate each and every impediment under any antitrust, competition, or trade regulation law that may be asserted by any Governmental Entity with respect to the Offer or the Merger so as to enable consummation thereof to occur as soon as reasonably possible, including without limitation, proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent, the Purchaser or the Company as may be required in order to avoid the entry of, or 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 or delaying consummation of the Offer or the Merger; and (iii) use its best efforts to 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 Offer or the Merger, including without limitation defending through litigation on the merits any claim asserted in any court by any party. Each party hereto shall promptly notify the other parties of any communication to that party from any Governmental Entity and permit the other parties to review in advance any proposed communication to any Governmental Entity. Parent and the Company shall not (and shall cause their respective affiliates and representatives not to) 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 party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement, each of the parties hereto will coordinate and cooperate fully with the other parties hereto in exchanging such information and providing such assistance as such other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods under the HSR Act or in connection with other Consents. Each of the Company, Parent and the Purchaser agrees to respond promptly to and comply fully with any request for additional information or documents under the HSR Act. Subject to the Confidentiality Agreement, the Company will provide Parent and the Purchaser, and Parent and the Purchaser will provide the Company, with copies of all correspondence, filings or communications (or memoranda setting forth the substance thereof) between such party or any of its representatives, on the one hand, and any Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and ~~to fulfill the conditions each such Purchaser is required to fulfill with respect to~~ the transactions contemplated hereby.

Appears in 2 contracts

Samples: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall ~~cooperate and~~ each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws and regulations~~ Applicable Law to consummate and make effective the ~~transactions contemplated~~ Transactions as promptly as practicable and in any event prior to the End Date, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties necessary to consummate the Transactions and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.10, each of Parent and the Company shall prepare and file any notification and report forms and related material required under the HSR Act as promptly as reasonably practicable and advisable (and, in any event, within ten (10) Business Days after the date of this Agreement) and shall provide or cause to be provided as promptly as reasonably practicable and advisable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act. Furthermore, each of Parent and Company shall prepare and file any notification and report forms and related material required by any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable and advisable and shall provide or cause to be provided as promptly as reasonably practicable and advisable any information and documentary material that may be requested by other Governmental Authorities under applicable Antitrust Laws (if any). Each of Parent and the Company shall use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities; provided, however, that, notwithstanding anything to the contrary in this Section 6.10 or elsewhere in this Agreement, ~~including, without limitation, commercially~~ the parties hereto understand and agree that Parent’s reasonable best efforts to shall include Parent (i) ~~obtain~~entering into a settlement, ~~prior~~ undertaking, consent decree, stipulation or agreement relating to ~~the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by~~ the Company, ~~and (ii) defend against and respond~~ its business or its assets, with or required by any Governmental Authority or other Person in connection with any consent or approval required to ~~any action, suit, proceeding~~ complete or ~~investigation against the Company relating to the transactions contemplated by this Agreement,~~ otherwise in ~~each case as are necessary for consummation of~~ connection with the transactions contemplated by this Agreement and (ii) proposing, negotiating, committing to ~~fulfill~~ and effecting, by consent decree, hold separate order or otherwise, the ~~conditions~~ sale, divestiture, disposition or hold separate of businesses, product lines or assets of the Company ~~is required~~ (a “Regulatory Action”); and, provided, further, that nothing in this Agreement shall require Parent or its Affiliates to ~~fulfill~~ (and the Company shall not without the express written consent of Parent) take or agree to any Regulatory Action which would result in or reasonably be likely to result in, either individually or in the aggregate, a material and adverse Effect on the Company’s business. Parent, Merger Sub and their respective Affiliates shall not take any action with the intention to, or that would reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of approval of the DOJ or FTC or under any other applicable Antitrust Laws. (c) Subject to Applicable Law, the Company and Parent and their respective counsel shall, keep the other party apprised on a reasonably timely basis of the status of any communications with, and any inquiries or requests for additional for additional information from, any Governmental Authority with respect to this Agreement. Subject to Applicable Law and to the extent practicable, the Company and Parent shall and their respective counsel shall (i) have the right to review in advance, and each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the ~~transactions contemplated hereby~~Transactions. To the extent reasonably practicable, neither party shall agree to participate in any meeting, or engage in any conversation, with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions unless it consults with the other party in advance and, unless prohibited by such Governmental Authority and to the extent permitted by Applicable Law, gives the other party the opportunity to attend and participate in such material meeting or conversation. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.10 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.10, materials provided to the other party or its counsel may be redacted to remove references concerning: (i) the valuation of the Company; (ii) competitively sensitive information; (iii) so as not to jeopardize attorney-client, attorney-work product, or any other applicable privileges; or (iv) so as not to contravene any Applicable Law. (bd) ~~Each Purchaser~~ All filing fees required in connection with any filings with any Governmental Authority under any Antitrust Laws that may be asserted by any Governmental Authority shall ~~cooperate and use commercially reasonable efforts to take, or cause to~~ be ~~taken, all appropriate action required of each such Purchaser~~borne by Parent, and each party shall be responsible for any of its own respective costs and expenses incurred by such party (including attorneys’ fees and other legal fees and expenses) associated with the preparation of its portion of any such filings. (e) Neither party shall, without the prior written consent of the other party, extend, directly or indirectly, any waiting period under the HSR Act or any Antitrust Law or enter into any Contract with any Governmental Authority to ~~make,~~ delay or ~~cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations~~ not to consummate ~~and make effective~~ the transactions contemplated by this Agreement~~, including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ . Subject to the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ Confidentiality Agreement and ~~orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond~~ to any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by~~ applicable sections of this Agreement, ~~in each case as are necessary for consummation of the transactions contemplated by this Agreement~~ and to ~~fulfill~~ the ~~conditions~~ extent permitted by Applicable Law, the parties will coordinate and cooperate fully with each other in exchanging information and providing such ~~Purchaser is required to fulfill~~ assistance as the other party may reasonably request in connection with ~~respect to~~ the ~~transactions contemplated hereby~~foregoing and in seeking early termination of any applicable waiting periods under the HSR Act or any other Antitrust Law.

Appears in 2 contracts

Samples: Merger Agreement (Gurnet Holding Co), Merger Agreement (Corium International, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall ~~cooperate and~~ each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all things reasonably necessary under Applicable Law to consummate the Merger, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or Proceeding by, any Governmental Authorities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties and (iii) the execution and delivery of any additional instruments reasonably necessary to ~~be made by~~ consummate the Merger and to fully carry out the purposes of this Agreement. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.09, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Merger, as promptly as practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of any notification and report forms and related material required under ~~applicable laws and regulations to consummate and make effective~~ the ~~transactions contemplated~~ HSR Act except by ~~this Agreement, including, without limitation, commercially reasonable efforts to (i~~mutual consent confirmed in writing) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) ~~defend against~~ provide or cause to be provided as promptly as practicable any information and ~~respond~~ documentary material that may be requested by the DOJ or FTC under the HSR Act. (c) Subject to ~~any action, suit, proceeding or investigation against the Company~~ Applicable Law relating to the ~~transactions contemplated by this Agreement~~exchange of information, the Company and Parent and their respective counsel shall (i) have the right to review in advance, and to the extent practicable each ~~case as are necessary for consummation of~~ shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the transactions contemplated ~~by this Agreement~~ hereby, (ii) promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, any Governmental Authority in connection with the transactions contemplated hereby and ~~to fulfill~~ (iii) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the ~~conditions~~ one hand, and any Governmental Authority or its respective staff, on the ~~Company is required to fulfill~~ other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby. Notwithstanding anything to the contrary in this Section 6.09, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and the Company Subsidiaries. (bd) Parent and the Company shall use reasonable best efforts to cooperate, except where prohibited by Applicable Law, in determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating to antitrust matters. Notwithstanding anything else contained herein, the Company shall not, without the prior written consent of Parent, (i) offer to sell, divest, hold separate, license, cause a Third Party to acquire, or otherwise dispose of, any Company Subsidiary, operations, divisions, businesses, product lines, customers or assets of Parent, its Affiliates, the Company or the Company Subsidiaries contemporaneously or after the Closing and regardless as to whether a Third Party purchaser must be identified or approved prior to the Closing (a “Divestiture”), (ii) agree or otherwise commit to undertake a Divestiture, (iii) take or commit to take such other actions that may limit Parent’s, its Affiliates’ the Company’s or the Company Subsidiaries’ freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets (a “Restraint”) or (iv) enter into any Order, consent decree or other agreement to effectuate any of the foregoing. Notwithstanding anything to the contrary in this Agreement, Parent shall not be required to offer, negotiate, agree to, effect, commit to, or undertake any Divestiture or Restraint, or enter into any Order, consent decree or other agreement to effectuate any of the foregoing provisions of this Section 6.09 if doing so will cause a material and adverse effect on Parent or the Company. (e) Each ~~Purchaser~~ of Parent and the Company shall ~~cooperate and~~ use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of each such Purchaser,~~ reasonable actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by each such Purchaser~~ things reasonably necessary, proper or advisable ~~under applicable laws~~ to obtain the amendments and ~~regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i~~consents listed on Section 6.09(e) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the ~~transactions contemplated by this Agreement~~ Company Disclosure Schedules (it being understood and agreed that the failure to ~~fulfill~~ obtain any of the ~~conditions each such Purchaser is required~~ foregoing shall not in itself be a condition to ~~fulfill with respect to the transactions contemplated hereby~~or otherwise affect Parent’s or Merger Sub’s obligations hereunder).

Appears in 2 contracts

Samples: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement (including Section 7.03), each of Parent and the Company shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and assist and cooperate with the other in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law or Order to consummate and make effective the ~~transactions~~ Transactions as promptly as reasonably practicable, including (i) preparing and filing as promptly as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate and make effective the Transactions (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to ARTICLE 8); provided, however, that none of the Company, its Subsidiaries nor any of their respective Representatives shall provide notice to, or request consent from, any Third Party with respect to this Agreement or the Transactions without the prior written consent of Parent (such consent not to be unreasonably withheld or delayed). (b) In furtherance, and not in limitation of the foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable after the date of this Agreement (and in any event within fifteen (15) Business Days of the date of this Agreement in the case of the following clause (i) and within 30 days of the date of this Agreement in the case of the following clauses (ii), (iii) and (iv) (unless counsel to the Parties have previously agreed to extend such periods)), (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions, (ii) an appropriate filing of a Notification of the Transactions with the German Federal Cartel Office (“Bundeskartellamt”) as prescribed by the ARC, (iii) a notification to The Federal Antimonopoly Service of the Russian Federation pursuant to FLN 135 (the jurisdictions referenced in clauses (ii) and (iii), the “Required Jurisdictions”) and (iv) a filing of a joint voluntary notice with CFIUS under Exon-Xxxxxx with respect to the Transactions. The draft voluntary notice shall be delivered to CFIUS as reasonably practicable after the date of this Agreement (and in any event within thirty (30) days of the date of this Agreement), and then as promptly as reasonably practicable and, in any event, within ten (10) Business Days of CFIUS notification that the draft filing meets all requirements of 31 C.F.R. § 800.402 of the regulations and is, accordingly, complete, the parties shall jointly file the voluntary notice with CFIUS as contemplated by ~~this Agreement~~31 C.F.R. § 800.401(a). Each of Parent and the Company shall use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be reasonably requested pursuant to the foregoing, ~~including~~and use reasonable best efforts to take all other actions necessary to cause the expiration or termination of (and not to extend) the applicable waiting periods regarding the foregoing as soon as reasonably practicable. (c) Except as prohibited by applicable Law or Order or by applicable Governmental Authority, ~~without limitation, commercially~~ each of Parent and the Company shall use reasonable best efforts to (i) ~~obtain, prior~~ cooperate with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the ~~Closing Date~~Transactions, ~~all licenses~~including any proceeding initiated by a private party, ~~permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and~~ (ii) ~~defend against~~ promptly inform the other Party of (and ~~respond to any action~~if in writing, ~~suit, proceeding or investigation against the Company relating~~ supply to the ~~transactions contemplated~~ other Party) any communication (other than any ministerial communications) received by ~~this Agreement~~such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, CFIUS 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 ~~as are necessary for consummation~~ regarding any of the ~~transactions contemplated~~ Transactions, (iii) consult with each other prior to taking any material position in discussions with or filings to be submitted to any Governmental Authority regarding any of the Transactions, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation to be submitted to any Governmental Authority regarding any of the Transactions, and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the Transactions. Notwithstanding anything to the contrary herein, Parent shall, on behalf of the Parties, have control over and lead all communications and strategy, including all analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation, relating to ~~fulfill~~ obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Authority in connection with consummating the ~~conditions~~ Transactions, except for stockholder litigation as set forth in Section 7.08. The Parties shall take reasonable best efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 7.01 in a manner so as to preserve the applicable privilege. (d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private), each of Parent and the Company ~~is required~~ shall (i) to ~~fulfill~~ the extent reasonably practicable, not participate in or attend any meeting, or engage in any conversation (other than ministerial conversations) with any Governmental Authority or arbitrator (public or private) in respect of the Transactions (including with respect to any of the ~~transactions contemplated hereby~~actions referred to in Section 7.01(a)) without the other, (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private) from participating or attending any such meeting or engaging in any such conversation, keep such non-participating Party reasonably apprised with respect thereto. (be) ~~Each Purchaser~~ Subject to Section 7.01(f), Parent and the Company shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action~~ actions necessary to consummate the Transactions. Without limiting the generality of the foregoing, but subject to Section 7.01(f), each Party: (i) shall make all filings (if any) and give all notices (if any) required of to be made and given by such Party in connection with the Transactions; (ii) shall use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant to any applicable Law or Contract, request by a Governmental Authority or arbitrator (public or private), or otherwise) by such ~~Purchaser,~~ Party in connection with the Transactions; and (iii) shall use reasonable best efforts to ~~make,~~ lift or cause to be ~~made~~overturned any restraint, ~~all filings required~~ injunction or other legal bar to ~~be made by each such Purchaser necessary, proper~~ the Transactions. (f) Notwithstanding anything to the contrary contained in this Section 7.01 or ~~advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by~~ elsewhere in this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ neither Parent nor Merger Sub shall have any obligation under this Agreement: (i) ~~obtain, prior~~ to ~~the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties~~ commence or threaten to ~~contracts with each such Purchaser required to be obtained by each such Purchaser and~~ commence litigation; (ii) ~~defend against and respond~~ to agree to hold separate, divest, license or cause a third party to purchase (or cause any of its Subsidiaries to agree to hold separate, divest, license or cause a third party to purchase) any of its respective businesses, product lines or assets; or (iii) to agree to any ~~action~~condition or limitation contemplated in this Section 7.01, ~~suit~~that would, ~~proceeding~~ or ~~investigation against each such Purchaser relating~~ would reasonably be expected to, have a Parent Material Adverse Effect. (g) In connection with obtaining the CFIUS Approval, and notwithstanding anything to the ~~transactions contemplated by~~ contrary in this Agreement, ~~in each case as are necessary for consummation~~ neither Parent nor Merger Sub shall have any obligation to agree to any mitigation measure or condition requested by CFIUS or any other Governmental Authority where such measure or condition could reasonably be expected to be materially adverse to the business or financial condition of the ~~transactions contemplated by this Agreement and~~ Company or Parent or could reasonably be expected to ~~fulfill~~ materially reduce the ~~conditions each such Purchaser is required~~ benefits to ~~fulfill with respect to~~ Parent of the ~~transactions contemplated hereby~~Merger.

Appears in 2 contracts

Samples: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Company shall ~~cooperate~~ cause each of the Company Subsidiaries to, use its reasonable best efforts (subject to, and ~~use commercially reasonable efforts~~ in accordance with, applicable Law) to ~~take~~take promptly, or to cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or to cause to be ~~made~~done, and to assist and to cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated ~~by this Agreement~~hereby, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary actions or nonactions, ~~prior~~ waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to ~~the Closing Date~~obtain an approval or waiver from, ~~all licenses~~or to avoid an action or proceeding by, ~~permits~~any Governmental Entity, ~~consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and~~ (ii) ~~defend against and respond to~~ the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any ~~action~~lawsuits or other legal proceedings, ~~suit~~whether judicial or administrative, ~~proceeding~~ challenging this Agreement or ~~investigation against~~ the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the transactions contemplated ~~by this Agreement~~ hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to ~~fulfill the conditions the Company is required to fulfill with respect to~~ consummate the transactions contemplated hereby. (b) ~~Each Purchaser~~ Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than ten (10) Business Days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use ~~commercially~~ reasonable best efforts to take, or to cause to be taken, all ~~appropriate action required of each such Purchaser,~~ other actions and to ~~make~~do, or to cause to be ~~made~~done, all ~~filings required to be made by each such Purchaser~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Termination Date), (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ including to the ~~Closing Date~~extent permitted by Law promptly furnishing the other with true and complete copies of notices or other communications sent or received by the Company or Parent, ~~all licenses~~as the case may be, ~~permits~~or any of their Subsidiaries, ~~consents~~to or from any third party and/or any Governmental Entity with respect thereto, ~~approvals~~and permit the other to review in advance any proposed communication by such party to any supervisory or Governmental Entity and (v) give the other reasonable notice of, ~~authorizations~~and, ~~qualifications~~ to the extent permitted by such Governmental Entity, allow the other to attend and ~~orders~~ participate at any meeting with any Governmental Entity in respect of ~~governmental authorities~~ any filings, investigation or other inquiry or proceeding relating thereto. (c) Subject to the rights of Parent in Section 7.7, and in furtherance and not in limitation of the covenants of the parties ~~to contracts with each such Purchaser required~~ contained in this Section 7.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be ~~obtained by each such Purchaser and (ii~~instituted) ~~defend against and respond to~~ challenging the Merger or any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions~~ other transaction contemplated by this Agreement, each of the Company and Parent shall cooperate in all respects with each ~~case as are necessary for~~ other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the~~ Merger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 7.6 shall limit a party’s right to terminate this Agreement pursuant to Section 9.2(a) or (b) so long as such party has, prior to such termination, complied with its obligations under this Section 7.6. (d) The parties will cooperate and use their respective reasonable efforts to identify and comply with any so-called “transaction-triggered” or “responsible property transfer” requirements under Environmental Laws that result from the Merger.

Appears in 2 contracts

Samples: Merger Agreement (Bj Services Co), Merger Agreement (Baker Hughes Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, each of Matrix, the Company and Parent shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement, including (i) preparing and filing, in consultation with the other Parties, as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain or maintain) all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party, in each case, that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, however, that, no party shall be required to pay (and, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), none of Matrix, the Company or the SpinCo Entities shall pay or agree to pay) any fee, penalty or other consideration to any other Third Party (other than any filing fees paid or payable to any Governmental Authority) for any approval, consent, registration, permit, authorization or other confirmation required for the consummation of the transactions contemplated by this Agreement; provided, ~~including~~further, that the Parties agree and acknowledge that, except as provided in Section 8.1(a), receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing. (b) In furtherance and not in limitation of the foregoing, each of the Company, Matrix and Parent shall make, as promptly as reasonably practicable, all required filings pursuant to the HSR Act and other Competition Laws, with respect to the transactions contemplated by this Agreement; provided that the filing by each of the Company and Parent of a Notification and Report Form pursuant to the HSR Act with respect to the Merger shall be made within five (5) Business Days of the date of this Agreement, unless a later date is agreed to in writing by the Company and Parent. Each of the Company, Matrix and Parent shall respond promptly to all requests for additional information and documentary material by a Governmental Authority, and shall comply promptly with such requests unless the Company and Parent agree with each other to defer compliance, and shall use reasonable best efforts to take all other actions necessary and appropriate to obtain all necessary approvals and to cause the expiration or termination of applicable waiting periods as soon as practicable so as to permit consummation of the contemplated transactions as soon as practicable. (c) The Company and Parent shall each request early termination of the waiting period with respect to the Merger under the HSR Act and neither Parent nor the Company shall, without ~~limitation, commercially reasonable efforts to~~ the written consent of the other (which consent shall not be unreasonably withheld): (i) ~~obtain~~pull and refile any notification under the HSR Act, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) ~~defend against~~ enter into any timing agreement with any Governmental Authority or (iii) agree with any Governmental Authority not to consummate the transactions contemplated by this Agreement for any period of time. Parent and ~~respond to any action~~Matrix shall each pay 50% of the filing fees payable under the HSR Act, ~~suit~~irrespective of whether the transactions contemplated by this Agreement are consummated. (d) Except as prohibited by applicable Law or Order, ~~proceeding or investigation against~~ Parent, Matrix and the Company shall (i) cooperate and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) promptly inform the other of (and if in writing, supply to the other) any communication received from, or given to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Authority, in each case regarding any of the transactions contemplated by this Agreement, (iii) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals or other communications to be submitted to any Governmental Authority, and (iv) coordinate with the other in preparing and exchanging such information and promptly provide the other with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act or any other Competition Law; provided, that documents or information required to be provided pursuant to this Section 7.1(d) (x) may be redacted as ~~are~~ necessary ~~for~~ (I) to comply with contractual arrangements, (II) to avoid waiver of any legal privilege, or (III) to remove references concerning the valuation or alternative bidders, and (y) may be designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed consultants of the recipient and will not be disclosed by such outside counsel or consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. (e) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company, Matrix and Parent shall (i) not participate in or attend any meeting, or engage in any conversation, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a)) without the other, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Parties reasonably apprised with respect thereto. (f) In furtherance of the foregoing, Parent shall use reasonable best efforts take any action to avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably possible and in any event, before the End Date, including (i) the prompt use of its reasonable best efforts to ensure the expiration of all waiting periods under the HSR Act, and to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, (A) the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, categories of assets or businesses or other operations or interests therein of the Company and the SpinCo Entities (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto), (B) the proffer and agreement by Parent of its willingness to take such other actions with respect to the Company and the SpinCo Entities, and promptly to effect such other actions (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto) (either (A) or (B), a “Remedy”), in each case if such action should be reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any Proceeding in any forum or (y) issuance of any Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement by any Governmental Authority, and (C) the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person, including any Governmental Authority, seeking to ~~fulfill~~ delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions; and (ii) the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and~~ prompt use ~~commercially~~ of its reasonable best efforts to take, in the event that any permanent, preliminary or ~~cause~~ temporary Order is entered or issued, or becomes reasonably foreseeable to be ~~taken~~entered or issued, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to in any ~~action, suit,~~ proceeding or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ inquiry of any kind that would make consummation of the transactions contemplated by this Agreement ~~and to fulfill the conditions each such Purchaser is required to fulfill~~ in accordance with ~~respect to~~ its terms unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated ~~hereby~~by this Agreement, any and all steps (including the appeal thereof and the posting of a bond) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement, provided, however, that nothing in this Agreement shall (1) require Parent to proffer or agree to any Remedy with respect to, including any sale, lease, license or other disposition of assets, rights, product lines, categories of assets or businesses or other operations or interests therein of, Parent or any of its Subsidiaries or Affiliates (or any other Person in which Parent or its Affiliates own any equity interest) other than the Company and the SpinCo Entities or (2) obligate Parent or the Company to agree to any Remedy not conditioned on the consummation of the Closing.

Appears in 2 contracts

Samples: Merger Agreement (IAC/InterActiveCorp), Merger Agreement (Meredith Corp)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall ~~cooperate and~~ use ~~commercially~~ its reasonable best efforts to ~~take~~take promptly, or to cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or to cause to be ~~made~~done, and to assist and to cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws to consummate and make ~~effective~~ effective, and to satisfy all conditions to, the Offer, the Merger and the other transactions contemplated hereby and to cause Merger Sub to purchase the Shares pursuant to the Offer on the earliest possible date following the satisfaction, or waiver by Parent or Merger Sub, of the Offer Conditions, including (i) the obtaining as promptly as practicable of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be reasonably necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining as promptly as practicable of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer, the Merger and the other transactions contemplated hereby (iv) the taking of all actions reasonable and necessary to obtain the Debt Financing and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by hereby. Notwithstanding anything set forth in this Agreement, ~~including~~under no circumstances shall Parent or Merger Sub be required, and the Company and its Subsidiaries shall not be permitted (without ~~limitation~~Parent’s written consent in its sole discretion), ~~commercially reasonable efforts~~ to ~~(i) obtain~~take any action, ~~prior~~ or commit to take any action, or agree to any condition or restriction, involving Parent, the ~~Closing Date~~Company or their respective Subsidiaries pursuant to this Section 6.6 or otherwise in connection with obtaining the foregoing actions or nonactions, ~~all licenses~~waivers, clearances, permits, consents, approvals, expirations, terminations and authorizations of third parties or Governmental Entities, that would be, or would be reasonably likely to be, individually or in the aggregate, material to Parent or the Company and its Subsidiaries (including after the Closing Date, the Surviving Company and its Subsidiaries) taken as a whole, in each case measured on a scale relative to the Company and its Subsidiaries taken as a whole (a “Materially Burdensome Condition”); provided that, if requested by Parent, the Company will take or commit to take any such action, or agree to any such condition or restriction, so long as such action, commitment, agreement, condition or restriction is binding on the Company only in the event the Offer Closing occurs. (b) Subject to the terms and conditions herein provided (including Section 6.6(a)) and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than eight (8) Business Days after the date hereof, file any and all Notification and Report Forms required under the HSR Act with respect to the Offer and the Merger and the other transactions contemplated hereby and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, provided that Parent and Company may agree to modify the timing of the Notification and Report Form filing status of Parent or Company to the extent that they mutually agree that doing so may expedite the HSR Act review, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required or advisable, in the reasonable judgment of Parent, to be made with, or consents, permits, authorizations, ~~qualifications~~ waivers, clearances, approvals, and ~~orders~~ expirations or terminations of ~~governmental authorities and parties to contracts with the Company~~ waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable additional information or documents that may be requested pursuant to any Regulatory Law or by ~~the Company~~such Governmental Entity, and (iiiv) ~~defend against~~ use reasonable best efforts to take promptly, or cause to be taken promptly, all other actions and ~~respond~~ do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or competition authorities of any other jurisdiction for which, in the reasonable judgment of Parent, consents, permits, authorizations, waivers, clearances, approvals and expirations or terminations of waiting periods are required or advisable with respect to the Offer, the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to such transactions so as to enable the Closing to occur as soon as reasonably possible (and to enable the Offer Closing to occur as soon as reasonably possible and in any event no later than the End Date), including (x) negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date limits the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or 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 Closing, materially delaying the Offer Closing or the Closing or delaying the Offer Closing beyond the End Date, provided that the Company will only be required to take or commit to take any such action, or agree to any such condition or restriction, if such action, ~~suit~~commitment, agreement, condition or restriction is binding on the Company only in the event the Offer Closing occurs. (c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed communication to, including any filings with, any Governmental Entity, and confer in good faith to resolve any disagreement as to their strategy for communicating with any Governmental Entity or third party regarding any Regulatory Law. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Any such disclosures, rights to participate or provisions of information by one party to the other may be made on an outside counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information. (d) Subject to Section 6.6(a), in furtherance and not in limitation of the covenants of the parties contained in this Section 6.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or ~~investigation~~ threatened to be instituted) challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding; provided, however, that (subject to the following sentence) the Company shall control the defense and settlement of any stockholder litigation against the Company and/or its directors relating to the transactions contemplated by this Agreement, ~~in each case as are necessary for consummation~~ whether commenced prior to or after the execution and delivery of this Agreement; provided, further, however, that the ~~transactions contemplated by this Agreement and~~ Company’s counsel shall be reasonably acceptable to ~~fulfill the conditions~~ Parent, the Company ~~is required to fulfill~~ shall not take any significant positions relating any such litigation without consulting Parent in advance, and the Company shall consult with Parent with respect to litigation strategy on a regular basis. The Company agrees that it shall not settle any litigation commenced after the date of this Agreement against the Company or any of its directors or executive officers by any stockholder of the Company relating to this Agreement, the Offer, the Merger, or any other transaction contemplated hereby, without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed. (e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, Orders, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Offer, the Merger and the other transactions contemplated hereby, including (i) the Xxxxxxx Act of 1890, the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation. (bf) ~~Each Purchaser~~ Prior to the Effective Time, the Company shall, and shall ~~cooperate~~ cause its Subsidiaries to, and shall use ~~commercially~~ its reasonable best efforts to ~~take~~cause its Representatives to, provide all cooperation that is necessary, customary or ~~cause~~ advisable and reasonably requested by Parent to ~~be taken~~assist Parent in the arrangement of any third party debt financing for the purpose of financing the Offer and/or the Merger, ~~all appropriate action required of each such Purchaser~~the fees and expenses incurred in connection therewith, and ~~to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ the other transactions contemplated ~~by this Agreement~~hereby (the “Debt Financing”) (it being understood that the receipt of such Debt Financing is not a condition to the Offer or the Merger), including~~, without limitation, commercially reasonable efforts to~~ : (i) ~~obtain~~participating in meetings, ~~prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ presentations and ~~orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser~~ due diligence sessions and (ii) ~~defend against~~ assisting with the preparation of materials for presentations, memoranda and ~~respond to any action~~similar documents required in connection with the Debt Financing; provided, ~~suit~~however, ~~proceeding or investigation against each~~ that (x) nothing herein shall require such ~~Purchaser relating~~ cooperation to the ~~transactions contemplated~~ extent it would (A) unreasonably disrupt the conduct of the Company’s business or (B) require the Company to agree to pay any fees, reimburse any expenses or otherwise incur any liability or give any indemnities prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified and (y) any documentation executed by ~~this Agreement, in each case as are necessary for~~ the Company of any of its Subsidiaries shall not become effective until the consummation of the ~~transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~Closing.

Appears in 2 contracts

Samples: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each Party will use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other Parties in doing or causing to be done, all things necessary, proper or advisable under this Agreement and applicable Laws to consummate the Combination and the other transactions contemplated by the Transaction Documents as soon as practicable after the date hereof, including (i) preparing and filing as promptly as practicable all documentation to effect all necessary applications, notifications, notices, petitions and filings and to obtain as promptly as practicable all Consents set forth in Section 5.4 of the Spinco Disclosure Schedule, Section 6.5 of the Spinco Disclosure Schedule and Section 7.5 of the Utah Disclosure Schedule that are required to be obtained or made at or prior to the Effective Time and all other material consents, waivers, licenses, orders, registrations, approvals, permits, rulings, expirations or terminations of waiting periods, authorizations and clearances necessary or advisable to be obtained from any third party and/or any Governmental Authority in order to consummate the Combination or any of the other transactions contemplated by the Transaction Documents (collectively, the “Approvals”), (ii) taking all reasonable steps as may be necessary to obtain all Approvals and (iii) taking reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 8.7 in a manner so as to preserve the applicable privilege; provided that, with respect to Approvals from third parties (other than Governmental Authorities) required under existing Contracts, such efforts shall not include any requirement or obligation of any Party to make any payment to any such third party or assume any Liability not otherwise required to be paid or assumed by the applicable Party pursuant to the terms of an existing Contract or offer or grant any financial accommodation or other benefit to such third party not otherwise required to be made by the ~~Company necessary~~applicable Party pursuant to the terms of an existing Contract. Notwithstanding anything to the contrary in this Section 8.7, ~~proper~~ materials provided to the other Party or ~~advisable under applicable laws~~ its outside legal counsel may be redacted to remove references concerning valuation. In furtherance and ~~regulations~~ not in limitation of the foregoing, each Party agrees to ~~consummate~~ promptly make (A) an appropriate filing of a Notification and ~~make effective~~ Report Form pursuant to the HSR Act with respect to the Combination and the other transactions contemplated by the Transaction Documents as promptly as practicable, and in any event within twenty (20) Business Days after the date hereof (unless the Parties shall mutually agree that postponing such filings to a later date is advantageous for purposes of satisfying the conditions to the Combination, in which case the Parties shall identify a reasonable later date and the Parties shall file on such later date), (B) appropriate filings, if any are required, with foreign regulatory authorities in accordance with other applicable Competition Laws, with respect to the Combination and the other transactions contemplated by the Transaction Documents as promptly as practicable and (C) all other necessary or appropriate filings with other Governmental Authorities with respect to the Combination and the other transactions contemplated by the Transaction Documents as promptly as practicable, and, in each case, to use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to such applicable Laws or by such Governmental Authorities and to use reasonable best efforts to cause the expiration or termination of any applicable waiting period under the HSR Act, and the receipt of the Approvals under such other applicable Laws or from such Governmental Authorities as soon as practicable. In connection with and without limiting the foregoing, each Utah Party, on the one hand, and Pluto and Spinco, on the other hand, shall, in connection with the efforts referenced in this ~~Agreement~~Section 8.7 to obtain all Approvals, ~~including, without limitation, commercially~~ use its reasonable best efforts to (ix) ~~obtain~~cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, ~~prior~~ including any proceeding initiated by a private party, (y) to the ~~Closing Date~~extent permitted by Law, ~~all licenses~~promptly inform the other Party of any communication received by such party from, ~~permits~~or given by such party to, ~~consents~~the Antitrust Division of the Department of Justice (the “DOJ”), ~~approvals, authorizations, qualifications~~ the Federal Trade Commission (the “FTC”) or any other Governmental Authority and ~~orders~~ of ~~governmental authorities and parties to contracts~~ any material communication received or given in connection with ~~the Company required to be obtained~~ any proceeding by ~~the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement~~a private party, in each case ~~as are necessary~~ regarding the Combination or any other transactions contemplated by the Transaction Documents (and in each case, if any such communication is in writing, share a copy with the other Party) and (z) to the extent permitted by Law, permit the other Party to review in advance any communication to be given by it to, and consult in good faith with each other in advance of any meeting or telephone call with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, any other Person, and to the extent permitted by the DOJ, the FTC or such other applicable Governmental Authority or other Person, give the other Party the opportunity to attend and participate in such meetings and conferences. Notwithstanding anything in this Agreement to the contrary, but without limiting each Party’s obligations under this Section 8.7, Utah shall, on behalf of the Parties, control and lead all communications and strategy for ~~consummation~~ dealing with the DOJ, the FTC or such other applicable Governmental Authority with respect to any antitrust, merger control, competition, national security or trade regulation Law that may be asserted by any Governmental Authority with respect to the Combination or any of the transactions contemplated by ~~this Agreement~~ the Transaction Documents, and ~~to fulfill~~ Utah shall, on behalf of the ~~conditions~~ Parties, control and lead the ~~Company is required to fulfill~~ defense strategy for dealing with all Actions challenging the Combination or any of the transactions contemplated by the Transaction Documents that are brought by DOJ, the FTC or such other applicable Governmental Authority with respect to ~~the transactions contemplated hereby~~any antitrust, merger control, competition, national security or trade regulation Law. (b) ~~Each Purchaser~~ Without limiting this Section 8.7, but subject to the next sentence of this Section 8.7(b), each Party will take, or to cause to be taken, any and all steps and to make any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition, national security or trade regulation Law that may be asserted by any Governmental Authority with respect to the Combination or any of the transactions contemplated by the Transaction Documents so as to enable the Closing to occur as soon as reasonably possible, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Spinco (or the Spinco Subsidiaries) or Utah (or the Utah Subsidiaries), as applicable, or (ii) otherwise taking or committing to take action that limits Spinco’s or the Spinco Subsidiaries’ or Utah’s or the Utah Subsidiaries’, as applicable, freedom of action with respect to, or their ability to retain, any of the businesses, product lines or assets of Spinco (or the Spinco Subsidiaries) or Utah (or the Utah Subsidiaries) (the actions referred to in clauses (i) and (ii) collectively, “Remedial Actions”) in each case, as may be required in order to satisfy the conditions to closing in Section 9.1(a) and to avoid the entry of, or 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 Closing or the closing of any other transaction contemplated by the Transaction Documents; provided that, the effectiveness of any such Remedial Action shall ~~cooperate and use commercially reasonable efforts to~~ be contingent on consummation of the Closing or such other closing, respectively; provided, further, that without the prior written consent of Utah, none of Pluto or any Spinco Party will take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill Remedial Action with respect to the ~~transactions contemplated hereby~~Spinco Business, the Spinco Assets or the Spinco Liabilities. The obligations of this Section 8.7(b) shall not require Pluto to agree to any Remedial Action with respect to any assets, Liabilities or businesses that are not included in the Spinco Assets, the Spinco Liabilities or the Spinco Business, respectively.

Appears in 2 contracts

Samples: Business Combination Agreement (Mylan N.V.), Business Combination Agreement (Pfizer Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions herein provided, each of Purchaser and Sellers shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to promptly take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under this Agreement and applicable ~~laws and regulations~~ Laws to consummate and make effective as promptly as practicable after the date hereof the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~preparing as promptly as practicable all necessary applications, ~~prior~~ notices, petitions, filings (or, if required by the applicable Governmental Entity, a draft thereof), ruling requests, and other documents and to ~~the Closing Date~~obtain as promptly as practicable all consents, ~~all~~ waivers, licenses, orders, registrations, approvals, permits, ~~consents, approvals~~rulings, authorizations, ~~qualifications~~ expiration of applicable waiting periods and ~~orders of governmental authorities and parties to contracts with the Company required~~ clearances necessary or advisable to be obtained from any Governmental Entity in order to consummate the transactions contemplated by this Agreement (collectively, the ~~Company,~~ “Governmental Approvals”) and (ii) ~~defend against~~ as promptly as practicable taking all steps as may be necessary to obtain all such Governmental Approvals. In furtherance and ~~respond~~ not in limitation of the foregoing, each Party hereto agrees to (A) make an appropriate and complete filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby within ten (10) Business Days of the date of this Agreement, (B) make all other required filings (or, if required by the applicable Governmental Entity, a draft thereof) pursuant to other Antitrust Laws with respect to the transactions contemplated hereby as promptly as practicable, and (C) not extend any ~~action~~waiting period under the HSR Act or any other Antitrust Law, ~~suit, proceeding~~ nor enter into any agreement with the FTC or ~~investigation against~~ the ~~Company relating~~ DOJ or any other Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other Party hereto. Each Party shall use its best efforts to cause all necessary filings in all Deferred Closing Jurisdictions to be made no later than five (5) Business Days after the date of this Agreement. As promptly as practicable after the date of this Agreement, Parent and Sellers shall use best efforts to provide to Purchaser’s outside antitrust counsel, all documents and information necessary to make all necessary filings in all Deferred Closing Jurisdictions and each Party shall supply as promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Antitrust 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 Antitrust Law as soon as possible. (b) Each of Purchaser and Sellers shall, in connection with the actions referenced in Section 5.3(a) to obtain all Governmental Approvals for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust 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 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) except for Parties’ Notification and Report Forms and attachments thereto filed under the HSR Act, 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 Sellers. Purchaser and Sellers, as ~~are necessary for~~ each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 5.3(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 (Purchaser or Sellers, 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 5.3(a) and 5.3(b), each of Purchaser, Sellers and the Company shall use its 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 Outside 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 Antitrust Law so as to enable the Closing to occur as soon as possible (and in any event no later than the Outside 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 Purchaser and the members of the Education Group, (y) otherwise taking or committing to take actions that after the Closing would limit Purchaser’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 Purchaser or the members of the Education Group, and (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 Purchaser’s or Purchaser’s Subsidiaries’ ability to operate or retain, any of the businesses, product lines or assets of Purchaser or the members of the Education Group; 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 to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~Agreement. (bd) ~~Each~~ Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Closing Date, each of Purchaser and Sellers shall ~~cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser~~not, and shall cause its Subsidiaries and controlled Affiliates to ~~make~~not, take or ~~cause~~ agree to take any action that would reasonably be ~~made, all filings required~~ expected to ~~be made by each such Purchaser necessary, proper~~ prevent or ~~advisable under applicable laws and regulations to consummate and make effective~~ delay the Parties from obtaining any Governmental Approval in connection with the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts~~ or to ~~(i) obtain, prior to~~ prevent or materially delay or impede the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated herein (which, for the avoidance of doubt, shall not include ordinary course trading in debt). (e) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by ~~this Agreement and to fulfill the conditions each such Purchaser~~ any Governmental Entity whose consent or approval is ~~required to fulfill~~ sought in connection with ~~respect to~~ the transactions contemplated hereby. Whether or not the Sale is consummated, Purchaser and Parent shall each be responsible for 50% of all filing fees and payments to any Governmental Entity in order to obtain any consents, approvals or waivers pursuant to this Section 5.3.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (McGraw-Hill Global Education LLC), Purchase and Sale Agreement (McGraw-Hill Companies Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required~~ actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the ~~Company~~foregoing, ~~and~~ each Party, as applicable, agrees to (x) make, or cause to be made, ~~all filings required to be made by the Company necessary, proper or advisable under applicable laws~~ an appropriate filing of a Notification and ~~regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ Report Form pursuant to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill HSR Act with respect to the ~~transactions contemplated hereby~~Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions, including the Merger. (b) Each ~~Purchaser shall~~ of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and ~~use commercially~~ assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable ~~efforts~~ opportunity to ~~take~~review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or ~~cause~~ given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to ~~be taken~~the other Party of any such written communications, ~~all appropriate action required~~ and of any communication received or given in connection with any proceeding by a private party, in each ~~such Purchaser~~case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to ~~make~~the extent not prohibited by the DOJ, the FTC or ~~cause~~ other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to ~~be made~~attend and participate thereat; provided, ~~all filings~~ however, that materials required to be ~~made by each such Purchaser necessary, proper or advisable under applicable laws and regulations~~ provided pursuant to ~~consummate and make effective~~ the ~~transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to~~ foregoing clauses (i) ~~obtain~~- (iii) may be redacted (A) to remove references concerning the valuation of Parent, ~~prior~~ Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the ~~Closing Date~~other under this Section 6.2(b) as “Outside Counsel Only Material” which such material 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all ~~licenses, permits~~waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, ~~authorizations~~permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, ~~qualifications~~ including but not limited to directing and ~~orders of governmental authorities~~ unilaterally determining (i) any decision to pull and ~~parties to contracts with each such Purchaser required to be obtained by each such Purchaser~~ refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) ~~defend against~~ any decision to enter into, and ~~respond~~ the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company. (c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any ~~action~~Contracts that are necessary to consummate the Transactions, ~~suit, proceeding or investigation against each such Purchaser relating~~ including the Merger. Notwithstanding anything to the ~~transactions contemplated by this Agreement~~contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in ~~each~~ the case ~~as are necessary for consummation~~ of the ~~transactions contemplated~~ Company, if requested by ~~this Agreement~~ Parent and ~~to fulfill the conditions each such Purchaser is required to fulfill with respect~~ either (i) reimbursed or indemnified for by Parent or (ii) subject to the ~~transactions contemplated hereby~~occurrence of the Closing).

Appears in 2 contracts

Samples: Merger Agreement (Tapestry, Inc.), Agreement and Plan of Merger (Capri Holdings LTD)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall ~~cooperate~~ (and shall cause their respective Subsidiaries to) each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts~~ Applicable Law to (i) ~~obtain~~obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, Outside Date and (ii) ~~defend against~~ deliver required notices or any necessary additional instruments to, and ~~respond~~ obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any ~~action, suit, proceeding or investigation against the Company relating~~ event prior to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated herebyOutside Date. (b) ~~Each Purchaser~~ In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date. (c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the 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 person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and ~~use commercially reasonable~~ Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) 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 party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. (d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all ~~appropriate action required of~~ steps necessary to avoid or eliminate each ~~such Purchaser~~and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, in any event prior to the ~~Closing~~ Outside Date, ~~all licenses~~including proposing, ~~permits~~negotiating, ~~consents~~committing to and effecting, ~~approvals~~by consent decree, ~~authorizations~~hold separate orders, ~~qualifications~~ or otherwise, the sale, divestiture, license or other disposition of such of its and ~~orders~~ its Subsidiaries’ assets, properties or businesses or of ~~governmental authorities and parties to contracts with each such Purchaser required~~ the assets, properties or businesses to be ~~obtained~~ acquired by ~~each~~ Parent pursuant hereto, and entering into such ~~Purchaser~~ other arrangements, as are necessary or advisable in order to avoid the entry of, and ~~(ii~~the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) ~~defend against and respond to~~ or any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by~~ other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each ~~case as are necessary for~~ case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date. (e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the ~~transactions contemplated by~~ Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this ~~Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Goldfield Corp), Merger Agreement (Goldfield Corp)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use ~~commercially~~ reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated ~~by this Agreement~~hereby, ~~including, without limitation, commercially reasonable efforts to~~ including taking (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreementand, in the case of Mars, Holdco or the Merger Subs, cause each ~~case~~ of their respective affiliates to take) all such further action as ~~are~~ may be necessary ~~for consummation~~ promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill~~ United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby~~. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser~~, and to ~~make,~~ avoid or ~~cause~~ eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to ~~be made, all filings required~~ the Mergers so as to ~~be made by each such Purchaser necessary, proper or advisable under applicable laws~~ enable the Closing to occur as soon as reasonably possible (and ~~regulations to consummate and make effective~~ in any event no later than the ~~transactions contemplated by this Agreement~~End Date), including, without limitation, ~~commercially reasonable efforts~~ (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (iy) ~~obtain~~otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, ~~prior~~ or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or 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 Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the ~~Closing Date~~assets or business of Holdco, ~~all licenses~~Mars, ~~permits~~Galaxy and their respective Subsidiaries, ~~consents~~taken as a whole, ~~approvals~~at or after the Effective Time. (c) Subject to applicable legal limitations and the instructions of any Governmental Entity, ~~authorizations, qualifications~~ Galaxy and ~~orders~~ Mars shall keep each other apprised of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the 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 Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers and the other transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 2 contracts

Samples: Merger Agreement (Gemstar Tv Guide International Inc), Merger Agreement (Macrovision Corp)

Efforts. (a) ~~The Company~~ Upon the terms and subject to the conditions of this Agreement, each Party shall, and shall ~~cooperate and~~ cause their respective Affiliates to, use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and cooperate with each other in order to do, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law (including under any Antitrust Law) to consummate the Merger and ~~make effective~~ the other transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable, but in any event before the End Date, including~~, without limitation, commercially reasonable efforts to~~ : (i) ~~obtain~~preparing and filing all forms, ~~prior~~ registrations, notifications, and notices required to be filed to consummate the ~~Closing Date~~Merger and the other transactions contemplated hereby (including as set forth in Section 5.05(d) below); and (ii) obtaining and maintaining any requisite consent, ~~all licenses~~approval, ~~permits~~authorization, waiver or Order required to be obtained from any other Person, including any Governmental Authority (whether or not such consents, approvals, authorizations, ~~qualifications~~ waivers or Orders are conditions to the consummation of the Merger pursuant to Article 6). (b) In furtherance and ~~orders~~ not in limitation of ~~governmental authorities~~ the foregoing, such reasonable best efforts of Parent and ~~parties~~ Merger Sub shall include, at Parent’s sole cost and expense, taking any action to ~~contracts~~ avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably possible, and in any event before the End Date. In particular, Xxxxxx and Xxxxxx Sub agree that their obligations pursuant to this Section 5.05 shall include (i) if reasonably determined by Parent to be necessary after consultation with the Company, “pulling and refiling” their filing made pursuant to the HSR Act in order to delay or avoid the issuance of any request for additional information or documentary material issued pursuant to the HSR Act (a “Second Request”), (ii) negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any of the businesses, product lines or assets of the Surviving Corporation or its Subsidiaries, (iii) terminating existing, or creating new, relationships, contractual rights or obligations of the Surviving Corporation or its Subsidiaries, (iv) effectuating any other change or restructuring of the Company or its Subsidiaries, or otherwise taking or committing to take any actions that limit the freedom of action of, the Company or its Subsidiaries, with respect to, or its ability to retain, one or more assets or businesses, or (v) resolving any objection asserted with respect to the transactions contemplated under this Agreement raised by any Governmental Authority; provided, however, that Parent and Merger Sub shall not be required to take such actions under this Section 5.05(b) that would, or would reasonably be ~~obtained~~ expected to (in Parent’s reasonable opinion) result in a material and adverse effect (provided that clause (B) and the proviso to the definition of “Company Material Adverse Effect” shall be disregarded) on the Company and its controlled Affiliates, taken as a whole (and, for the avoidance of doubt, Parent shall not be required to take any such actions with respect to any of the assets, voting securities, properties, products, product lines, services or businesses of Parent or any of its Affiliates); provided, further that neither Parent nor Merger Sub will be required to respond to a Second Request or any comparable formal or informal request or in-depth review pursuant to any other applicable Law (including under any Antitrust Law) from any Governmental Authority. (c) Notwithstanding anything to the contrary in this Agreement, (i) no action taken by Parent pursuant to this Section 5.05 shall entitle Parent to any reduction of the ~~Company~~Per Share Merger Consideration, and (ii) ~~defend against~~ the parties acknowledge that the Company and ~~respond~~ its Affiliates shall not be required to divest or hold separate or otherwise take or commit to take any action that, prior to the Closing, limits its freedom of action with respect to, or its ability to retain, the business of the Company or its Subsidiaries, any of its or their respective assets and properties, or any material portion thereof. (d) Parent and the Company agree to make, and to cause their respective Affiliates to make, any necessary filings under the HSR Act and any other Antitrust Laws as promptly as practicable after execution of this Agreement; provided, however, that any necessary filings under the HSR Act shall, in any event, be made within 10 Business Days after the execution of this Agreement (provided, that if the Federal Trade Commission or the Antitrust Division of the United States Department of Justice is closed or not accepting filings under the HSR Act (a “Closure”), such 10 Business Day period shall be extended day-for-day, for each Business Day such Closure is in effect). Parent and the Company shall, and shall cause their respective Affiliates to, (i) comply at the earliest practicable date with any request under the HSR Act or any other Antitrust Laws to provide information, documents or other materials requested by any Governmental Authority (including during any extension of the waiting period under the HSR Act pursuant to a “pull and refile” of Parent and Merger Sub’s filing made pursuant to the HSR Act), and (ii) coordinate and cooperate in connection with their respective efforts to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws as promptly as practicable, but in any event before the End Date, and unless prohibited by applicable Law or a Governmental Authority, (A) keep outside antitrust counsel for the other Party promptly informed of any communication received by such Party or any of its Affiliates from any Governmental Authority regarding any of the transactions contemplated hereby, and (B) provide outside antitrust counsel for the other Party with a reasonable opportunity to review any proposed communication by such Party or its Affiliates with any Governmental Authority, consult with outside antitrust counsel for the other Party prior to any ~~action~~meeting or conference with any Governmental Authority, ~~suit, proceeding~~ and attend and participate in such meetings or ~~investigation against~~ conferences. Without the prior written consent of the Company ~~relating~~ (such consent not to be unreasonably withheld, conditioned or delayed), Parent will not, and will not permit its Affiliates to consent or agree to extend the waiting period under the HSR Act or enter into any agreement with any Governmental Authority with respect to the transactions contemplated by this Agreement. Each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.05 as “outside antitrust counsel only.” Such competitively sensitive material 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 antitrust counsel to employees, officers or directors of the recipient unless express permission is obtained in ~~each~~ advance from the source of the materials (Parent or the Company, as the case may be), or its outside antitrust counsel. Notwithstanding anything to the contrary in this Section 5.05, materials provided to the other party hereto or its outside antitrust counsel may be redacted to remove references concerning the valuation of the Company and its Subsidiaries or other competitively sensitive information. The parties shall coordinate and consult in good faith with respect to the overall strategy relating to the HSR Act and any other applicable Antitrust Laws, including with respect to any antitrust filings, notifications, submissions and communications with or to any Governmental Authority; provided, however, that Parent shall make the final determination as ~~are necessary for~~ to the appropriate course of action. (e) Parent shall not, and shall not permit any of its Affiliates to, enter into (or agree to enter into) any merger or acquisition that would reasonably be expected to: (i) materially delay or materially and adversely affect Parent’s ability to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws with respect to the Merger as promptly as practicable, but in any event before the End Date; or (ii) materially delay or materially and adversely affect Parent’s ability to avoid the entry of, the commencement of any Action seeking the entry of, or effect the dissolution of, any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits consummation of the Merger and the other transactions contemplated by this Agreement ~~and to fulfill~~ under the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~HSR Act or any other Antitrust Laws. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 2 contracts

Samples: Merger Agreement (Gentex Corp), Merger Agreement (Gentex Corp)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each party will use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or ~~advisable~~ advisable, including under applicable ~~laws~~ Law, to cause the conditions to the Merger set forth in Article VIII to be satisfied and ~~regulations~~ to consummate the Combination and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including by (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents, and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations, necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Combination or any of the other transactions contemplated by this Agreement; and (ii) taking all steps as may be necessary, subject to the limitations in this Section 7.3, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make ~~effective~~ an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable after the execution of this Agreement, and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act, as soon as practicable. (b) Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law (as defined below), (i) cooperate in all respects and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions; (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), or any other Governmental Entity, by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement, ~~including~~provided, ~~without limitation~~however, ~~commercially~~ that materials may be redacted (x) to remove references concerning the valuation of Parent, Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns; and (iii) permit the other party to review any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with, the DOJ, the FTC, or any other Governmental Entity, provided, however, that materials may be redacted (x) to remove references concerning the valuation of Parent, Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns, or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the DOJ, the FTC, or any other applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate in such meetings, substantive telephone calls and conferences. For purposes of this Agreement, “Regulatory Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other national, federal or state, domestic or foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate (A) actions having the purpose or effect of monopolization or restraint of trade or affecting competition or market conditions through merger, acquisition or other transaction and (B) foreign investment. (c) In furtherance and not in limitation of the covenants of the parties contained in Section 7.3(a) and Section 7.3(b), each of Parent and the Company shall, and shall cause its Subsidiaries to, use its reasonable best efforts to (iA) ~~obtain~~resolve objections, ~~prior~~ if any, as may be asserted with respect to the ~~Closing Date~~transactions contemplated by this Agreement under any Regulatory Law or (B) avoid the entry of, ~~all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with~~ effect the ~~Company required to be obtained by the Company~~dissolution of, and ~~(ii) defend against and respond to~~ have vacated, lifted, reversed or overturned, any ~~action~~decree, ~~suit~~order or judgment that would prevent, ~~proceeding~~ prohibit, restrict or ~~investigation against~~ delay the ~~Company relating to~~ consummation of the transactions contemplated by this Agreement, so as to, in each ~~case~~ case, enable the parties to close the contemplated transactions expeditiously (but in no event later than the Termination Date). In furtherance, but without limiting the foregoing, Parent shall, and shall cause its Subsidiaries to, (i) negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of Parent, the Company or their respective Subsidiaries, or agree to any other structural or conduct remedy, or (ii) otherwise take or commit to take any actions that would limit Parent’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of Parent, the Company or their respective Subsidiaries or any interest therein (any such action, a “Remedy”); provided, that Parent and its Subsidiaries shall not be permitted to take or commit, and the Company and its Subsidiaries shall not be required to take or commit to take, to take any Remedy with respect to the Company or any of its Subsidiaries the effectiveness of which is not conditioned on the Closing occurring; provided, further, that, notwithstanding anything in this Agreement to the contrary, none of Parent, the Company or their respective Subsidiaries shall be required to take or commit to take any Remedy pursuant to this Section 7.3 that, individually or in the aggregate, would reasonably be expected to have a material adverse impact on (x) Parent and its Subsidiaries, taken as a whole, after giving effect to the Combination (assuming Parent and its Subsidiaries, taken as a whole, after to giving effect to the Combination, are ~~necessary~~ the size of the Company and its Subsidiaries, taken as a whole, prior to giving effect to the Combination), or (y) the benefits that are expected to be derived from the Combination. (d) Each of Parent and the Company shall use its reasonable best efforts to obtain the expiration or termination of all waiting periods and all consents, waivers, authorizations and approvals of all third parties, including Governmental Entities (except those contemplated by Section 7.3(b), which shall be governed by that Section), necessary, proper or advisable for the consummation of the transactions contemplated by this Agreement and to ~~fulfill~~ provide any notices to third parties required to be provided prior to the ~~conditions~~ Effective Time; provided that, without the prior written consent of Parent, the Company ~~is required~~ shall not incur any significant expense or liability, enter into any significant new commitment or agreement or agree to ~~fulfill with respect~~ any significant modification to any contractual arrangement to obtain such consents or certificates in each case, that would have a material adverse effect on the business or operations of the Company and its Subsidiaries, taken as a whole, and, to the ~~transactions contemplated hereby~~extent Parent provides any such written consent, any such approved payments or other consideration (including increased rent payments), or the provision of additional security (including a guaranty), shall be the sole responsibility of Parent. None of Parent, the Company or their respective Subsidiaries shall, without the prior written consent of the other parties hereto, enter into agreement or other commitment with a Governmental Entity to not close the Combination before a date that is following the Termination Date. (be) Each ~~Purchaser~~ of Parent and the Company shall reasonably cooperate and use ~~commercially~~ its reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable best efforts to (i) ~~obtain~~seek each consent, ~~prior to the Closing Date~~approval, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser or waiver and (ii) ~~defend against~~ prepare and ~~respond to~~ deliver any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement~~notice, in each case of the foregoing clauses (i) and (ii), required to be delivered or obtained, as ~~are necessary for~~ applicable, as a result of the consummation of the ~~transactions~~ Combination pursuant to any material Contract that the Company, Parent or any of their respective Subsidiaries are a party; provided that Parent and the Company shall not be required to make any payment or incur any liability or obligation, or commit to make any payment or incur any liability or obligation, in connection with seeking any consent, approval or waiver contemplated by ~~this Agreement and to fulfill~~ the ~~conditions each such Purchaser~~ foregoing clause (i) the effectiveness of which is ~~required to fulfill with respect to~~ not conditioned on the ~~transactions contemplated hereby~~Closing occurring.

Appears in 2 contracts

Samples: Merger Agreement (Take Two Interactive Software Inc), Merger Agreement (Zynga Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall cooperate with each other and use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws and regulations~~ Applicable Law to consummate the Merger and ~~make effective~~ the other transactions contemplated by this Agreement as promptly as practicable, including (i) preparing and filing as promptly as practicable after the date hereof with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, financial statements, records, applications and other documents, in each case, as required by this Section 8.01, (ii) obtaining and maintaining as required by this Section 8.01 all approvals, consents, registrations, Permits, authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority that are necessary to consummate the transactions contemplated by this Agreement, and (iii) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby; provided, that in no event shall Parent, Merger Subsidiary, the Company or any of their respective Subsidiaries be required to waive any right or condition set forth in this Agreement or any Transaction Document. (b) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall, as necessary, (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (and in any event within ten (10) Business Days after the date hereof), (ii) within 15 calendar days following the date of this Agreement, submit to DDTC any notifications regarding the transactions contemplated hereby required pursuant to Section 122.4 of the ITAR, (iii) make each other appropriate filing required pursuant to any Foreign Regulatory Law (collectively with the HSR Act, ITAR and CFIUS Laws and Regulations, the “Regulatory Laws”) as promptly as practicable, (iv) comply at the earliest practicable date with any request under any of the Regulatory Laws for additional information, documents, or other materials received by each of them or any of their respective Subsidiaries or Affiliates from any Regulatory Authority in respect of such filings or such transactions and (v) cooperate with each other in connection with any such filing (including, to the extent permitted by Applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry of any Regulatory Authority under any of the Regulatory Laws with respect to any such filing or any such transaction. Each such party shall use its reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Regulatory Law in connection with the transactions contemplated by this Agreement. Each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Regulatory Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Regulatory Authority in respect of any such filings, investigation, or other inquiry without ~~limitation~~giving the other parties hereto prior notice of the meeting and, ~~commercially~~ to the extent permitted by such Regulatory Authority, the opportunity to attend and/or participate. Subject to Applicable Law, the parties hereto will 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 hereto relating to proceedings under any of the Regulatory Laws. Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 8.01(b) as “outside counsel only”. Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 8.01(b) in a manner so as to preserve any applicable privilege. All filing fees payable in connection with the notifications, filings, registrations or other materials contemplated by this Section 8.01(b) shall be paid entirely by the Parent. Notwithstanding the foregoing, the Parent shall direct and control all communications and strategy relating to obtaining the approvals required under any Regulatory Laws following consultation with the Company. (ic) ~~obtain, prior~~ The parties shall cooperate to submit a draft joint voluntary notice to CFIUS with respect to the ~~Closing Date~~transactions contemplated by this Agreement (the “Draft CFIUS Notice”) as soon as practicable after the date of this Agreement. After receipt of confirmation that CFIUS has no further comments or inquiries related to the Draft CFIUS Notice, ~~all licenses~~the parties shall submit the CFIUS Notice as soon as practicable. The parties shall comply at the earliest practicable time, ~~permits~~and in any event no later than required by CFIUS or any CFIUS member agency, ~~consents~~with any request for additional information, ~~approvals~~documents or other materials, ~~authorizations~~and will cooperate with each other in connection with both the Draft CFIUS Notice and the CFIUS Notice and in connection with resolving any investigation or other inquiry of CFIUS or any CFIUS member agency. The parties shall each promptly inform the other party of any oral communication with, ~~qualifications~~ and ~~orders~~ provide copies of ~~governmental authorities and parties to contracts with the Company~~ written communications with, CFIUS or any CFIUS member agency regarding any such filings; provided, that no party shall be required to ~~be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating~~ share communications containing its confidential business information if such confidential information is unrelated to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser . The parties shall ~~cooperate and use commercially reasonable~~ undertake best efforts to promptly take, or cause to be taken, all ~~appropriate action required of each such Purchaser~~action, and ~~to make~~do, or cause to be ~~made~~done all things necessary or advisable to obtain CFIUS Approval as soon as practicable, ~~all filings~~ and in any event prior to the End Date, provided, however, that no party shall be required to take or agree to take any undertaking that is not conditioned on the consummation of the transactions contemplated by this Agreement. All filing fees payable in connection with the notifications, filings, registrations or other materials contemplated by this Section 8.01(c) shall be ~~made~~ paid entirely by ~~each such Purchaser~~ the Parent. (d) In addition, Parent shall (i) defend or contest any Action challenging this Agreement or the transactions contemplated hereby by any Regulatory Authority and (ii) solely with regards to the HSR Act, oppose, through and including Action on the merits (and all appeals with respect thereto), any claim asserted in court or other forum by any Regulatory Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the End Date. (e) Notwithstanding anything herein to the contrary, Parent shall, as soon as possible and in any event prior to the End Date take any and all action necessary, ~~proper~~ including but not limited to (i) selling or ~~advisable under applicable laws~~ otherwise disposing of, or holding separate and ~~regulations~~ agreeing to ~~consummate~~ sell or otherwise dispose of, assets, categories of assets or businesses of the Company or its Subsidiaries; (ii) terminating existing relationships, contractual rights or obligations of the Company or its Subsidiaries; (iii) terminating any venture or other arrangement of the Company or its Subsidiaries; (iv) creating any relationship, contractual rights or obligations of the Company or its Subsidiaries or (v) effectuating any other change or restructuring of the Company or its Subsidiaries (and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with the Federal Trade Commission, the Department of Justice, any attorney general of any state of the United States, the European Commission, any other competition authority of any jurisdiction, CFIUS or any other Governmental Authority (collectively, “Regulatory Authority”) in connection with any Regulatory Law and in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets; by consenting to such action by the Company and provided, that any such action may, at the discretion of the Company, be conditioned upon consummation of the Merger) (each a “Divestiture Action”) solely to ensure (x) that no Regulatory Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger and (y) that no Regulatory Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger, fails to do so by the End Date. In the event that any action is threatened or instituted by a Regulatory Authority challenging the Merger as violative of any Regulatory Law, Parent shall take all action necessary, including but not limited to any Divestiture Action, to avoid or resolve such action. In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make ~~effective~~ consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, ~~including~~Parent shall use reasonable best efforts to vacate, ~~without limitation~~modify or suspend such injunction or order so as to permit such consummation prior to the End Date. Notwithstanding anything to the contrary, ~~commercially reasonable~~ for the avoidance of doubt, none of the Company or any of its Subsidiaries or Affiliates prior to the Closing shall be required to take any action set forth in Section 8.01(c) or Section 8.01(d) (which is not conditioned on the Closing) to satisfy the efforts standard set forth in this Section 8.01 (or elsewhere in this Agreement). (f) Except as specifically required by this Agreement, Parent shall not (and shall cause (x) the Persons listed on Section 8.01(f)-1 of the Company Disclosure Letter and their controlled Affiliates and (y) the Persons listed on Section 8.01(f)-2 of the Company Disclosure Letter not to) (1) acquire or agree to acquire (by merging or consolidating with, or by purchasing a controlling portion of the assets of or equity in, or by any other manner), any Person or portion thereof which competes, in any material respect, in the consumer cybersecurity industry, or otherwise acquire or agree to acquire any assets which compete, in any material respect, in the consumer cybersecurity industry or (2) assign any of its rights hereunder to any Person or permit any Person to acquire a direct or indirect interest in Parent, in each case, if the entering into an agreement to consummate, or the consummation of, such acquisition, merger or consolidation or assignment would reasonably be expected to (i) ~~obtain~~impose any material delay in the obtaining of, ~~prior to~~ or increase the ~~Closing Date~~risk of not obtaining, ~~all licenses,~~ any permits, ~~consents~~orders or other approvals of any Regulatory Authority necessary to satisfy the condition set forth in Section 9.01(c), ~~approvals~~Section 9.01(d) or Section 9.01(e), ~~authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and~~ (ii) ~~defend against and respond to~~ increase the risk of any ~~action, suit, proceeding or investigation against each such Purchaser relating to~~ Regulatory Authority entering an order prohibiting the ~~transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the transactions contemplated by hereby which would prevent the satisfaction of the condition set forth in Section 9.01(b), or (iii) increase the risk of not being able to remove any Restraint. For purposes of this ~~Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ Section 8.01(f), with respect to the ~~transactions contemplated hereby~~controlled Affiliates of the Persons listed on Section 8.01(f)-1, “control” means the ability to nominate a majority of the members of the board of directors or similar governing body of such Person.

Appears in 2 contracts

Samples: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)

Efforts. (ai) ~~The Company~~ Each of Capital One, Synovus, Parent and Seller shall ~~cooperate~~ (and Capital One, Synovus, Parent and Seller shall cause each of their respective Affiliates to) use ~~commercially~~ its reasonable best efforts to ~~take~~consummate the transactions contemplated hereby and, or in the case of Parent, Seller and their respective Affiliates, by the Merger Agreement, and to cause the conditions set forth in Article VI to be ~~taken~~satisfied and, in the case of Parent, Seller and their respective Affiliates, the conditions set forth in the Merger Agreement to be satisfied (it being understood that the foregoing shall not prohibit Parent or Seller from exercising any right pursuant to the Merger Agreement to terminate the Merger Agreement in accordance with its terms). Without limiting the generality of the foregoing, Synovus shall (and shall cause its Affiliates to) and each of Capital One, Parent and the Seller shall (and shall cause each of their respective Affiliates to) use their respective reasonable best efforts to (A) as promptly as practicable obtain all Synovus Required Approvals, Capital One Required Approvals and Seller Required Approvals, (B) on or before April 19, 2017, make and not withdraw (without the Seller’s and Capital One’s consent, in the case of Synovus, and without Capital One’s and Synovus’s consent, in the case of Seller or Parent, and without the Seller’s and Synovus’s consent, in the case of Capital One), all ~~appropriate action~~ registrations and filings with any Governmental Authority or other persons necessary or advisable in connection with the consummation of the transactions contemplated hereby, including the filings required of the ~~Company~~parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under any applicable Laws, and ~~to make, or cause to~~ promptly make any further filings pursuant thereto that may be ~~made, all filings required to be made by the Company necessary, proper~~ necessary or advisable ~~under applicable laws~~ (such registrations and ~~regulations~~ filings, in the case of the Synovus Required Approvals, the “Synovus Required Filings”), (C) defend all lawsuits or other legal, regulatory, administrative or other proceedings to ~~consummate and make effective~~ which it or any of its Affiliates is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, ~~including~~including those described on Schedule 5.1(a)(i), ~~without limitation~~in each case until the issuance of a final, ~~commercially reasonable efforts~~ non-appealable order with respect to each such lawsuit or other proceeding, (iD) ~~obtain~~seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby, ~~prior~~ in each case until the issuance of a final, non-appealable order with respect thereto and (E) seek to resolve any objection or assertion by any Governmental Authority challenging this Agreement or the transactions contemplated hereby other than, in the case of Synovus, in respect of a Synovus Required Approval. Notwithstanding anything to the ~~Closing Date~~contrary in this Agreement, ~~all licenses~~Synovus may withdraw any registration or filing made pursuant to this Section 5.1(a)(i) if, ~~permits~~after submission thereof, ~~consents, approvals, authorizations, qualifications~~ the relevant Governmental Authority to which such registration or filing has been submitted (1) has requested that such registration or filing be withdrawn or (2) informed Synovus that such registration or filing will be denied if such registration or filing is not withdrawn; provided that promptly following such request by such Governmental Authority or being so informed by such Governmental Authority (x) Synovus provides to Seller and ~~orders~~ Capital One an affidavit signed by an executive officer of ~~governmental authorities and parties to contracts~~ Synovus setting forth the content of the applicable communication with the ~~Company required to be obtained by the Company~~relevant Governmental Authority, if such communication was oral, or a copy of such communication if it was written, and (y) Synovus consults with Capital One and Parent before such withdrawal. (ii) ~~defend against~~ In furtherance of the obligations set forth in Section 5.1(a)(i), (A) subject to Section 5.1(a)(v), Synovus shall promptly take (and ~~respond~~ shall cause each of its Affiliates to take) any ~~action~~and all actions necessary or advisable to obtain all Synovus Required Approvals and to avoid or eliminate each and every impediment to the consummation of the transactions contemplated hereby in connection with obtaining the Synovus Required Approvals, ~~suit, proceeding or investigation against~~ in each case so as to enable the ~~Company relating~~ parties to consummate the transactions contemplated by this Agreement, ~~in each case~~ and (B) the Seller shall make, subject to the condition that the transactions contemplated hereby or thereby actually occur, any undertakings (including undertakings to accept operational restrictions or limitations or to make sales or other dispositions, provided that such restrictions, limitations, sales or other dispositions are conditioned upon the consummation of the transactions contemplated hereby) as are ~~necessary for~~ requested by Synovus and are required to obtain such Synovus Required Approvals or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the transactions contemplated by this Agreement. None of the parties hereto shall, directly or indirectly, through one or more of their respective Affiliates, take any action (in the case of Parent and Seller, other than exercising any right under the Merger Agreement ~~and~~ to ~~fulfill~~ terminate the Merger Agreement in accordance with its terms), that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated hereby or, in the case of Parent and Seller, by ~~this Agreement and to fulfill~~ the ~~conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~Merger Agreement.

Appears in 2 contracts

Samples: Framework Agreement (Cabela's Credit Card Master Note Trust), Framework Agreement (Synovus Financial Corp)

Efforts. (a) ~~The Company~~ From and after the date hereof, Purchaser, Seller and their respective Affiliates shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under any applicable ~~laws and regulations~~ Law to consummate and make effective in the most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the preparation and filing of all forms, ~~prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ registrations and ~~orders of governmental authorities and parties to contracts with the Company~~ notices required to be ~~obtained~~ filed to consummate the Transaction and the other transactions contemplated by ~~the Company,~~ this Agreement as soon as practicable and (ii) ~~defend against~~ the execution and ~~respond~~ delivery of any additional instruments necessary to ~~any action, suit, proceeding or investigation against~~ consummate the ~~Company relating to~~ Transaction and the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation of the~~ other transactions contemplated by this Agreement and to ~~fulfill~~ fully carry out the ~~conditions~~ purposes of this Agreement. Without limiting the ~~Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser~~ foregoing, Purchaser, Seller and their respective Affiliates shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of each such Purchaser~~actions, and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by each such Purchaser~~ things necessary, proper or advisable ~~under applicable laws~~ to obtain (and ~~regulations~~ shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Approvals) required to ~~consummate~~ be obtained or made by Purchaser, Seller, the other Seller Entities or the Target Entities in connection with the Transaction or the other transactions contemplated by this Agreement. Additionally, each of Purchaser and ~~make effective~~ Seller (and their respective Affiliates) shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and shall not take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing. To the extent that transfers of any Permits are required as a result of the execution of this Agreement or the consummation of the Transaction or the other transactions contemplated by this Agreement, ~~including, without limitation, commercially~~ the Parties shall use reasonable best efforts to ~~(i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each~~ effect such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebytransfers.

Appears in 2 contracts

Samples: Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.), Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.)

Efforts. (a) ~~The Company~~ From and after the date hereof, Buyer and each Seller shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under any applicable ~~laws and regulations~~ Law to consummate and make effective in the most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the preparation and filing of all forms, ~~prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ registrations and ~~orders of governmental authorities and parties to contracts with the Company~~ notices required to be ~~obtained~~ filed to consummate the Transaction and the other transactions contemplated by ~~the Company,~~ this Agreement as soon as practicable and (ii) ~~defend against~~ the execution and ~~respond~~ delivery of any additional instruments necessary to ~~any action, suit, proceeding or investigation against~~ consummate the ~~Company relating to~~ Transaction and the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation of the~~ other transactions contemplated by this Agreement and to ~~fulfill~~ fully carry out the ~~conditions~~ purposes of this Agreement. Without limiting the ~~Company~~ foregoing, Buyer and each Seller shall use their reasonable best efforts to take all actions necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include Buyer filing a request for advance ruling certificate under the Competition Act and each of Buyer and each Seller filing, as soon as is ~~required to fulfill with respect~~ practicable (and subject to the ~~transactions contemplated hereby. (b~~immediately succeeding sentence), pre-merger notifications under Part IX of the Competition Act and furnishing all information required in connection with such Approvals) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be obtained or made by Buyer, any Seller, any Purchased Company or any Subsidiary of any Purchased Company in connection with the Transaction or the other transactions contemplated by this Agreement. Within ten (10) Business Days following the date hereof, Sellers and Buyer will make the initial filings or submissions as are required under the HSR Act and any other applicable Antitrust Law. Additionally, Buyer and each ~~such Purchaser necessary~~Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and shall not take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, ~~proper~~ or ~~advisable under applicable laws and regulations~~ result in not obtaining, any Regulatory Approval necessary to ~~consummate and make effective~~ be obtained prior to the Closing. To the extent that transfers of any Permits are required as a result of the execution of this Agreement or the consummation of the Transaction or the other transactions contemplated by this Agreement, ~~including, without limitation, commercially~~ the Parties hereto shall use reasonable best efforts to effect such transfers. Each of the Parties hereto hereby agrees that (i) ~~obtain, prior to~~ the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ Parties will bear the costs of ~~governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser~~ obtaining any Approval set forth on Section 7.2(d) of the Seller Disclosure Schedules or Section 7.2(e) of the Seller Disclosure Schedules as set forth on Section 5.1(a) of the Seller Disclosure Schedules and (ii) ~~defend against~~ HD Supply and ~~respond to~~ Buyer shall each pay when due and be responsible for one half of any ~~action, suit, proceeding or investigation against each such Purchaser~~ and all filing fees in connection with the filing by the parties hereto of the premerger notification and report forms relating to the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation of~~ Transaction or the other transactions contemplated by this Agreement under the HSR Act and ~~to fulfill~~ the ~~conditions each such Purchaser is required to fulfill with respect to~~ filing of any notice under the ~~transactions contemplated hereby~~Competition Act.

Appears in 2 contracts

Samples: Purchase Agreement (Hd Supply, Inc.), Purchase Agreement (Anixter International Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts to take, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, as promptly as practicable, the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals, which Parent, Merger Subsidiary and the Company shall cooperate with each other in obtaining such Company Approvals, and Parent Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby. In furtherance of the foregoing, the Company may, but in no event shall the Company or any of its Subsidiaries be required to, pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and Parent Approvals, from Governmental Authorities. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, if required under the HSR Act, the Company and Parent shall (i) promptly, but in no event later than the fifteenth (15th) Business Day after the date of this Agreement, file any and all Notification and Report Forms required under the HSR Act with respect to the Merger and the other transactions contemplated hereby, and use ~~commercially~~ reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, Authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, Authorizations or approvals, (iii) supply to any Governmental Authority as promptly as practicable any additional information or documentary material that may be requested pursuant to any Regulatory Law or by such Governmental Authority and (iv) use reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby. (c) Each of Parent and the Company shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and equityholders, and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Authority in connection with the Merger and the transactions contemplated by this Agreement. Subject to applicable legal limitations and the instructions of any Governmental Authority, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated by this Agreement, ~~including~~including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, ~~without limitation~~as the case may be, ~~commercially~~ or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Authority with respect to such Merger or transactions. The Company and Parent shall provide counsel for the other party a reasonable ~~efforts~~ opportunity to ~~(i) obtain~~review in advance, ~~prior~~ and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the proposed transactions unless it consults with the other party in advance and, to the ~~Closing Date~~extent not prohibited by such Governmental Authority, ~~all licenses~~gives the other party the opportunity to attend and participate. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.11, ~~permits~~if any administrative or judicial action or proceeding, ~~consents~~including any proceeding by a private party, ~~approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required~~ is instituted (or threatened to be ~~obtained by~~ instituted) challenging the ~~Company, and (ii) defend against and respond to~~ Merger or any ~~action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions~~ other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use its respective reasonable best efforts to contest and resist any such action or proceeding and to ~~fulfill~~ have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~conditions the Company is required to fulfill with respect to the transactions~~ Merger or any other transaction contemplated hereby. (be) ~~Each Purchaser shall cooperate~~ For purposes of this Agreement, “Regulatory Law” means any and ~~use commercially reasonable efforts to take~~all state, federal and foreign statutes, rules, Regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or ~~cause to be taken~~the consent, ~~all appropriate action required of each such Purchaser~~clearance or approval of, ~~and to make~~any Governmental Authority, or that otherwise may cause ~~to be made~~any restriction, ~~all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws~~ in connection with the Merger and ~~regulations to consummate and make effective~~ the transactions contemplated ~~by this Agreement~~thereby, including, without limitation, ~~commercially reasonable efforts to~~ (i) ~~obtain~~the Xxxxxxx Act of 1890, ~~prior~~ the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against~~ any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and ~~respond to~~ its Subsidiaries or (iii) any ~~action, suit, proceeding~~ Law with the purpose of protecting the national security or ~~investigation against each such Purchaser relating~~ the national economy of any nation. Notwithstanding anything to the ~~transactions contemplated by~~ contrary in this Agreement, in ~~each case as are~~ connection with the receipt of any necessary ~~for consummation~~ approvals or clearances of a Governmental Entity (including under the ~~transactions contemplated by this Agreement and to fulfill~~ HSR Act), neither Parent nor the ~~conditions each such Purchaser is~~ Company (nor any of their respective Subsidiaries or Affiliates) shall be required to ~~fulfill~~ (and, without Parent’s prior consent, the Company shall not) sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or offer or agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, enter into or offer or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the ~~transactions contemplated hereby~~assets, operations or conduct of their business in a specified manner, or permit the sale, holding separate or other disposition of, any assets of Parent, the Company or their respective Subsidiaries or Affiliates.

Appears in 1 contract

Samples: Merger Agreement (Firstcity Financial Corp)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and ~~use commercially reasonable efforts to take~~conditions provided herein, ~~or cause to be taken, all appropriate action required~~ each of the Company, Parent and the Purchaser shall, and the Company shall cause each of its subsidiaries to, cooperate and use all reasonable efforts to make, or cause to be made, all filings ~~required to be made by the Company necessary,~~ necessary or proper ~~or advisable~~ under applicable laws and ~~regulations~~ regulations, and to take all other actions necessary or advisable to consummate and make effective the transactions contemplated by this Agreement, ~~including~~including but not limited to cooperation in the preparation and filing of the Offer Documents, ~~without limitation~~the Schedule 14D-9 and any actions or filings related thereto, ~~commercially reasonable efforts~~ the Proxy Statement, any required filings under the HSR Act, or other foreign filings and any amendments to ~~(i) obtain~~any thereof, and cooperation in obtaining approvals necessary from Government Entities to continue fully existing operations. In addition, if at any time prior to the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties~~ Effective Time any event or circumstance relating to ~~contracts with~~ either the Company ~~required to~~ or Parent or the Purchaser or any of their respective subsidiaries should be ~~obtained~~ discovered by the ~~Company~~Company or Parent, ~~and (ii) defend against and respond to any action~~as the case may be, ~~suit, proceeding or investigation against the Company relating~~ which should be set forth in an amendment to the ~~transactions contemplated by~~ Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, including the execution of additional instruments, the proper officers and directors of each party to this Agreement shall take all such necessary action. (b) Parent and the Company shall file as soon as practicable (but not later than five business days in the case of the HSR Act filings) after the date of this Agreement notifications under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Merger and shall respond as promptly as practicable to all inquiries or requests received from the Federal Trade Commission or the Antitrust Division of the Department of Justice or such other domestic or foreign antitrust regulatory authority, as applicable for additional information or documentation and shall respond as promptly as practicable to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters. The parties shall cooperate with each ~~case~~ other in connection with the making of all such filings or responses, including providing copies of all such documents to the other party and its advisors prior to filing or responding. (c) Each of the parties will use its reasonable best efforts to obtain as ~~are necessary for~~ promptly as practicable all Consents of any Governmental Entity or any other person required in connection with, and waivers of any Violations that may be caused by, the consummation of the transactions contemplated by ~~this Agreement~~ the Offer and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, ~~including~~provided, ~~without limitation~~however, ~~commercially reasonable efforts to (i) obtain~~that, ~~prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ notwithstanding any other provision of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by -------- ------- this Agreement, the Company shall not, without Parent's prior written consent, and Parent shall not be obligated to, agree to divest, hold separate or otherwise materially restrict the use or operation of any business or assets of Parent or the Company, which divestiture, agreement to hold separate, or other restriction would reasonably be expected to have a Material Adverse Effect on Parent or the Company, as the case may be. Xxxxxxx represents that it cur- rently has no pending acquisitions in ~~each case as~~ the motion controls area (except for those being announced on the date hereof) and there are ~~necessary for consummation of~~ no such acquisitions currently intended in the ~~transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~near term.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Danaher Corp /De/)

Efforts. ~~(a) The Company~~ 6.9.1 Subject to the terms and conditions of this Agreement, each of the Parties shall cooperate with each other and each use ~~commercially~~ (and shall cause their respective Subsidiaries to use) their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other Party in doing, all things reasonably necessary under Applicable Law to consummate the Merger as promptly as practicable, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Entities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid a Proceeding by, any Governmental Entities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties, and (iii) the execution and delivery of any additional instruments reasonably necessary to ~~be made by~~ consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be permitted to pay, and Parent shall not be obligated to pay or permit or agree to the Company paying, any material cash consideration to any Third Party from whom consent or approval is required (other than filing fees payable to Governmental Entities). 6.9.2 In furtherance and not in limitation of the undertakings pursuant to this Section ‎6.9, each of Parent and the Company shall (i) promptly and in any event within 30 Business Days of the date hereof prepare and file any notification and report forms and related material required under the HSR Act and any additional filings or notifications and related material that are necessary, proper or advisable to obtain SARB Approval, (ii) (A) submit, as promptly as practicable and in any event within 30 Business Days of the date hereof, to CFIUS a draft joint voluntary notice under ~~applicable laws~~ Exon-Xxxxxx with respect to the Merger, (B) as promptly as practicable thereafter, file with CFIUS a final joint voluntary notice, and ~~regulations~~ (C) supply any additional information and documentary information or material that may be requested in connection with the CFIUS review process within the amount of time allowed by CFIUS, and (iii) cooperate with the other Parties in connection with any such filings or notifications, and in connection with resolving any investigation or other inquiry of any Governmental Entity in relation to ~~consummate~~ such filings or notifications, including the U.S. Department of Justice or the U.S. Federal Trade Commission under the HSR Act. 6.9.3 Subject to Applicable Law relating to the exchange of information, the Company and ~~make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to~~ Parent and their respective counsel shall (i) ~~obtain~~cooperate with each other in determining whether any action by or in respect of, ~~prior to~~ or filing with, any Governmental Entity is required, in connection with the ~~Closing Date, all licenses, permits~~consummation of the Merger and seeking any such actions, consents, ~~approvals~~approvals or waivers or making any such filings, ~~authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and~~ (ii) ~~defend against~~ furnish to each other all information required for any application or other filing under the rules and ~~respond to~~ regulations of any ~~action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement,~~ Applicable Law in ~~each case as are necessary for consummation of~~ connection with the transactions contemplated by this Agreement (including in connection with CFIUS Clearance), (iii) provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to ~~fulfill~~ proceedings under the ~~conditions~~ HSR Act or in connection with CFIUS Clearance) with a Governmental Entity in connection with the ~~Company is required to fulfill~~ transactions contemplated hereby, (iv) promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, any Governmental Entity in connection with the transactions contemplated hereby, and (v) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent practicable, provide the other Party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby (including in connection with CFIUS Clearance). 6.9.4 Notwithstanding anything else contained herein, Parent and its Subsidiaries shall take, and cause to be taken, all steps necessary to avoid or eliminate any impediment under Applicable Law that may be asserted by a Governmental Entity with respect to, and to satisfy all conditions to the consummation of, the Merger; provided, however, that neither Parent nor any of its Subsidiaries shall be required to, and the Company shall not, without the prior written consent of Parent, (bx) ~~Each Purchaser~~ in connection with efforts to obtain the expiry or early termination of any applicable waiting period (or any extensions thereof) under the HSR Act or to obtain SARB Approval, offer, propose, agree or commit (i) to sell, divest, hold separate, license, cause a Third Party to acquire or otherwise dispose of (A) any of the respective Affiliates of the Company or Parent or (B) any of the respective operations, divisions, businesses, products, customers, assets, properties or rights of Parent, the Company or any of their respective Affiliates (a “Divestiture”), (ii) to take any other actions that may limit Parent’s, its Affiliates’, the Company’s or its Affiliates’ conduct in any way or any of the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products, customers, assets, properties or rights, including, in the case of Parent, the right to own or operate any portion of the businesses of the Company or any of its Subsidiaries or Affiliates (a “Restraint”), or (iii) to enter into any Order, consent decree or other agreement to effectuate a Divestiture or Restraint or (y) in connection with efforts to obtain CFIUS Clearance, agree or consent to any condition, agreement, order or burden in order to obtain CFIUS Clearance that would (i) prevent Parent from appointing, removing and controlling, at its sole discretion, all of the directors of the Surviving Corporation, (ii) restrict Parent from receiving information concerning the operations, finances, sales and customers of the Surviving Corporation necessary to allow Parent to direct, operate and control the Surviving Corporation as its Subsidiary, or (iii) cause Parent’s control or ownership of the Surviving Corporation and its Subsidiaries to be passive or to otherwise restrict in any material respect the ability of Parent to control and operate the Surviving Corporation and its Subsidiaries or their respective businesses; provided, however, that the limitations on efforts in this Section 6.9.4(y)(i-iii) shall ~~cooperate~~ not affect Parent’s efforts obligations to the extent any restrictions proposed by CFIUS solely relate to the transmission of information to, or management of the Surviving Corporation by, any shareholder of Parent’s ordinary shares or representatives (including board representatives) of any such shareholder. Nothing in this Section 6.9.4 shall require Parent or its Subsidiaries to contest or resist any Proceeding commenced by a Governmental Entity or to have vacated, lifted, reversed or overturned any Order entered in any such Proceeding, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger. 6.9.5 Subject to the proviso to Section ‎6.9.1, the Company shall use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of each such Purchaser,~~ reasonable actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by each such Purchaser~~ things reasonably necessary, proper or advisable ~~under applicable laws~~ to obtain the consents reasonably requested by Parent; provided that the Company shall not take any action to solicit or obtain such consents unless and ~~regulations~~ until the Company or the Company’s counsel is directed to ~~consummate~~ do so by Parent or Parent’s counsel and ~~make effective~~ then only upon the ~~transactions contemplated by this Agreement~~basis so requested, ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior to~~ no such action will be required that is not conditioned on the Closing ~~Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ and ~~orders of governmental authorities~~ nothing in this Section 6.9.5 will affect the Parties’ relative rights and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyobligations under Article 7.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Sibanye Gold LTD)

Efforts. (a) ~~The Company~~ Upon the terms and subject to the conditions of this Agreement, each Party shall, and shall ~~cooperate and~~ cause their respective Affiliates to, use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and cooperate with each other in order to do, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law (including under any Antitrust Law) to consummate the Merger and ~~make effective~~ the other transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable, but in any event before the End Date, including~~, without limitation, commercially reasonable efforts to~~ : (i) ~~obtain~~preparing and filing all forms, ~~prior~~ registrations, notifications, and notices required to be filed to consummate the ~~Closing Date~~Merger and the other transactions contemplated hereby (including as set forth in ‎Section 5.05(d) below); and (ii) obtaining and maintaining any requisite consent, ~~all licenses~~approval, ~~permits~~authorization, waiver or Order required to be obtained from any other Person, including any Governmental Authority (whether or not such consents, approvals, authorizations, ~~qualifications~~ waivers or Orders are conditions to the consummation of the Merger pursuant to ‎Article 6). (b) In furtherance and ~~orders~~ not in limitation of ~~governmental authorities~~ the foregoing, such reasonable best efforts of Parent and ~~parties~~ Merger Sub shall include, at Parent’s sole cost and expense, taking any action to ~~contracts~~ avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably possible, and in any event before the End Date. In particular, Parent and Mxxxxx Sub agree that their obligations pursuant to this ‎Section 5.05 shall include (i) if reasonably determined by Parent to be necessary after consultation with the Company, “pulling and refiling” their filing made pursuant to the HSR Act in order to delay or avoid the issuance of any request for additional information or documentary material issued pursuant to the HSR Act (a “Second Request”), (ii) negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any of the businesses, product lines or assets of the Surviving Corporation or its Subsidiaries, (iii) terminating existing, or creating new, relationships, contractual rights or obligations of the Surviving Corporation or its Subsidiaries, (iv) effectuating any other change or restructuring of the Company or its Subsidiaries, or otherwise taking or committing to take any actions that limit the freedom of action of, the Company or its Subsidiaries, with respect to, or its ability to retain, one or more assets or businesses, or (v) resolving any objection asserted with respect to the transactions contemplated under this Agreement raised by any Governmental Authority; provided, however, that Parent and Merger Sub shall not be required to take such actions under this ‎Section 5.05(b) that would, or would reasonably be ~~obtained~~ expected to (in Parent’s reasonable opinion) result in a material and adverse effect (provided that clause (B) and the proviso to the definition of “Company Material Adverse Effect” shall be disregarded) on the Company and its controlled Affiliates, taken as a whole (and, for the avoidance of doubt, Parent shall not be required to take any such actions with respect to any of the assets, voting securities, properties, products, product lines, services or businesses of Parent or any of its Affiliates); provided, further that neither Parent nor Merger Sub will be required to respond to a Second Request or any comparable formal or informal request or in-depth review pursuant to any other applicable Law (including under any Antitrust Law) from any Governmental Authority. (c) Notwithstanding anything to the contrary in this Agreement, (i) no action taken by Parent pursuant to this ‎Section 5.05 shall entitle Parent to any reduction of the ~~Company~~Per Share Merger Consideration, and (ii) ~~defend against~~ the parties acknowledge that the Company and ~~respond~~ its Affiliates shall not be required to divest or hold separate or otherwise take or commit to take any action that, prior to the Closing, limits its freedom of action with respect to, or its ability to retain, the business of the Company or its Subsidiaries, any of its or their respective assets and properties, or any material portion thereof. (d) Parent and the Company agree to make, and to cause their respective Affiliates to make, any necessary filings under the HSR Act and any other Antitrust Laws as promptly as practicable after execution of this Agreement; provided, however, that any necessary filings under the HSR Act shall, in any event, be made within 10 Business Days after the execution of this Agreement (provided, that if the Federal Trade Commission or the Antitrust Division of the United States Department of Justice is closed or not accepting filings under the HSR Act (a “Closure”), such 10 Business Day period shall be extended day-for-day, for each Business Day such Closure is in effect). Parent and the Company shall, and shall cause their respective Affiliates to, (i) comply at the earliest practicable date with any request under the HSR Act or any other Antitrust Laws to provide information, documents or other materials requested by any Governmental Authority (including during any extension of the waiting period under the HSR Act pursuant to a “pull and refile” of Parent and Merger Sub’s filing made pursuant to the HSR Act), and (ii) coordinate and cooperate in connection with their respective efforts to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws as promptly as practicable, but in any event before the End Date, and unless prohibited by applicable Law or a Governmental Authority, (A) keep outside antitrust counsel for the other Party promptly informed of any communication received by such Party or any of its Affiliates from any Governmental Authority regarding any of the transactions contemplated hereby, and (B) provide outside antitrust counsel for the other Party with a reasonable opportunity to review any proposed communication by such Party or its Affiliates with any Governmental Authority, consult with outside antitrust counsel for the other Party prior to any ~~action~~meeting or conference with any Governmental Authority, ~~suit, proceeding~~ and attend and participate in such meetings or ~~investigation against~~ conferences. Without the prior written consent of the Company ~~relating~~ (such consent not to be unreasonably withheld, conditioned or delayed), Parent will not, and will not permit its Affiliates to consent or agree to extend the waiting period under the HSR Act or enter into any agreement with any Governmental Authority with respect to the transactions contemplated by this Agreement. Each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this ‎Section 5.05 as “outside antitrust counsel only.” Such competitively sensitive material 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 antitrust counsel to employees, officers or directors of the recipient unless express permission is obtained in ~~each~~ advance from the source of the materials (Parent or the Company, as the case may be), or its outside antitrust counsel. Notwithstanding anything to the contrary in this ‎Section 5.05, materials provided to the other party hereto or its outside antitrust counsel may be redacted to remove references concerning the valuation of the Company and its Subsidiaries or other competitively sensitive information. The parties shall coordinate and consult in good faith with respect to the overall strategy relating to the HSR Act and any other applicable Antitrust Laws, including with respect to any antitrust filings, notifications, submissions and communications with or to any Governmental Authority; provided, however, that Parent shall make the final determination as ~~are necessary for~~ to the appropriate course of action. (e) Parent shall not, and shall not permit any of its Affiliates to, enter into (or agree to enter into) any merger or acquisition that would reasonably be expected to: (i) materially delay or materially and adversely affect Parent’s ability to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws with respect to the Merger as promptly as practicable, but in any event before the End Date; or (ii) materially delay or materially and adversely affect Parent’s ability to avoid the entry of, the commencement of any Action seeking the entry of, or effect the dissolution of, any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits consummation of the Merger and the other transactions contemplated by this Agreement ~~and to fulfill~~ under the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~HSR Act or any other Antitrust Laws. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (VOXX International Corp)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions of this Agreement, Purchaser and the Seller shall ~~cooperate and~~ use ~~commercially~~ their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and ~~to make~~do, or cause to be ~~made~~done, and assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws~~ to cause the conditions to the Closing to be satisfied as promptly as practicable and ~~regulations~~ to consummate and make ~~effective~~ effective, in the ~~transactions contemplated by this Agreement~~most expeditious manner practicable, ~~including~~the Transactions, ~~without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~preparing and filing promptly and fully all documentation to effect all necessary filings, ~~prior to the Closing Date~~notices, ~~all licenses~~petitions, ~~permits~~statements, ~~consents~~registrations, ~~approvals~~submissions of information, ~~authorizations~~applications and other documents, ~~qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and~~ (ii) ~~defend against~~ obtaining all Consents from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions, (iii) executing and ~~respond~~ delivering any additional instruments necessary to consummate the Transactions and (iv) defending or contesting in good faith any ~~action~~Action brought by a third party that could otherwise prevent or impede, ~~suit~~interfere with, ~~proceeding~~ hinder or ~~investigation against~~ delay in any material respect the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the ~~transactions contemplated by this Agreement and to fulfill~~ Transactions, in the ~~conditions the Company is required to fulfill~~ case of each of clauses (i) through (iv), other than with respect to ~~the transactions contemplated hereby~~filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to (A) Antitrust Laws, which are dealt with in Sections 7.01(b) and (c) and (B) Transferred Assets, which are dealt with in Section 2.04. (b) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the date of this Agreement, and in any event within fifteen (15) Business Days following the date of this Agreement, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions prior to the Termination Date. Without limiting the foregoing, Purchaser shall ~~cooperate and use commercially reasonable efforts to~~ promptly take, or cause to be taken, any and all ~~appropriate action required~~ actions necessary to secure the expiration or termination of ~~each such Purchaser~~any applicable waiting period under the HSR Act (“HSR Approval”) or any other Antitrust Law or any other Consent under Antitrust Laws, and resolve any objections asserted with respect to ~~make~~the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, in order to prevent the entry of, or ~~cause~~ to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit or restrict the consummation of the Transactions or delay the consummation of the Transactions beyond the Termination Date, including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets used in or businesses of the Purchaser U.S. Business (including, after the Closing, any Transferred Assets), (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets used in or businesses of the Purchaser U.S. Business (including, after the Closing, any Transferred Assets), (D) terminating existing relationships, contractual rights or obligations of Purchaser or any of its Affiliates, (E) terminating any joint venture or other arrangement or (F) creating any relationship, contractual right or obligation of Purchaser or any of its Affiliates (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with any of the foregoing and, in the case of actions by or with respect to the Seller, by consenting to such action by the Seller (including any Consents required under this Agreement or the other Transaction Documents with respect to such action); provided that any such action may, at the discretion of the Seller, be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in a court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any Restraint that would or would reasonably be expected to prevent the Closing from occurring prior to the Termination Date. All such efforts shall be unconditional and shall not be qualified in any manner and no actions taken pursuant to this Section 7.01 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur. Purchaser will not withdraw its initial filing pursuant to the HSR Act or any other Antitrust Law, as the case may be, and refile any of them, unless the Seller has consented in advance to such withdrawal and refiling (which consent shall not be unreasonably withheld, conditioned or delayed), in which case such refiling shall be made promptly. Purchaser shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions. The Seller and Purchaser and any of their respective Affiliates shall not take any action with the intention to, or that could reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of the approval of the DOJ or FTC as necessary. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. Purchaser and the Seller shall jointly, and on an equal basis (x) control the strategy for obtaining any Consents from any Governmental Authority in connection with the Transactions and (y) coordinate the overall development of the positions to be ~~made, all filings required~~ taken and the regulatory actions to be ~~made~~ requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by ~~each such~~ or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither Purchaser ~~necessary~~nor Seller shall commit to or agree with any Governmental Authority to stay, ~~proper~~ toll or ~~advisable~~ extend any applicable waiting period under ~~applicable laws and regulations to consummate and make effective~~ the ~~transactions contemplated by this Agreement, including~~HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without ~~limitation, commercially~~ the prior written consent of the other party. (c) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing, submission or written communication with a Governmental Authority in connection with the 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 person, and allow the other party to review in advance and consider in good faith the views of the other party with respect to such filing, submission, or written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the FTC, the DOJ or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “4(c) documents” as that term is used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, give the other parties hereto prompt notice of, and the reasonable opportunity to attend and participate in, such meetings and conferences. (d) Notwithstanding anything to the contrary in Section 2.04, Purchaser and the members of the Seller Group shall cooperate and shall cause their Affiliates to cooperate using their respective commercially reasonable efforts to transfer, obtain, or to cause to be transferred or obtained, prior to the Closing ~~Date~~or as soon as practicable thereafter, ~~all licenses~~any Environmental Permit necessary for Purchaser to own and operate the Business and the Transferred Assets. In furtherance of the foregoing, ~~permits~~(i) during the period commencing on the date hereof and continuing until six (6) months after the Closing, ~~consents, approvals, authorizations, qualifications~~ each of Purchaser and ~~orders~~ the members of ~~governmental authorities and parties to contracts with each such Purchaser required~~ the Seller Group shall provide or cause to be ~~obtained~~ provided to the other parties all commercially reasonable assistance as is reasonably requested in connection with transferring or obtaining (and/or terminating, if required by ~~each~~ Law or Environmental Law) any such ~~Purchaser~~ Environmental Permits, and (ii) if any Environmental Permits are not transferred or obtained prior to the Closing, pending the earlier of obtaining such Environmental Permit or the expiration of such six (6)-month period, Purchaser and each member of the Seller Group shall use commercially reasonable efforts to cooperate in any lawful and reasonable arrangement reasonably proposed by either Purchaser or any member of the Seller Group under which Purchaser shall obtain the benefit of and bear the burdens and obligations of ownership of any such Environmental Permits held by a member of the Seller Group in connection with the ownership or operation of the Business or the Transferred Assets; provided that no member of the Seller Group shall be required to pay any consideration therefor, or to commence, defend ~~against and respond~~ or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any ~~action~~third party; provided, ~~suit~~further, ~~proceeding~~ that Purchaser shall indemnify and hold harmless the Seller Indemnitees from and against any actual Losses arising out of or ~~investigation against each such Purchaser~~ relating to any Environmental Permit held by any member of the ~~transactions contemplated by~~ Seller Group for the benefit of Purchaser pursuant to any arrangement established pursuant to clause (ii), to the extent related to any period of such arrangement. If such Environmental Permit is not transferred or obtained prior to the expiration of such six (6) month period, the members of the Seller Group will be deemed to have fulfilled its obligations under this Agreement and under no circumstances shall the Purchase Price be reduced, or any member of the Seller Group or its Affiliates be subject to any liability or cost, on account of the Purchaser’s failure to obtain any such Environmental Permit. (e) Notwithstanding anything to the contrary in this Agreement, the Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in ~~each case as are necessary for consummation~~ connection with the performance of ~~the transactions contemplated by~~ their respective obligations under this ~~Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~Section 7.01.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Ashland Global Holdings Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, the Company and its Subsidiaries, Parent and Merger Sub shall ~~cooperate~~ use, and ~~use commercially~~ Parent shall cause the Guarantors to use, their respective reasonable best efforts to ~~take~~take promptly, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws to consummate and make effective the Merger and the other transactions contemplated by this ~~Agreement~~Agreement as soon as practicable and in any event prior to the End Date, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary actions or nonactions, ~~prior to the Closing Date, all licenses, permits~~waivers, consents, clearances, approvals, ~~authorizations~~and expirations or terminations of waiting periods, ~~qualifications~~ including the Specified Approvals and ~~orders~~ the Parent Approvals, from Governmental Entities and the making of ~~governmental authorities~~ all necessary registrations and ~~parties~~ filings and the taking of all steps as may be necessary to ~~contracts with the Company required~~ obtain an approval, clearance or waiver from, or to ~~be obtained by the Company~~avoid an action or proceeding by, ~~and~~ any Governmental Entity, (ii) ~~defend against~~ the obtaining of all necessary consents, approvals or waivers from third parties and ~~respond~~ (iii) the execution and delivery of any additional instruments necessary to ~~any action, suit, proceeding or investigation against the Company relating to~~ consummate the transactions contemplated by this Agreement; provided, however, that in ~~each case as are necessary~~ no event shall the Company, any of its Subsidiaries, Parent or Merger Sub be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement ~~and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~under any contract or agreement. (b) ~~Each Purchaser shall cooperate~~ Subject to the terms and ~~use commercially reasonable efforts to take~~conditions herein provided and without limiting the foregoing, ~~or cause to be taken~~the Company, ~~all appropriate action required of each such Purchaser~~its Subsidiaries, Parent and Merger Sub shall, and Parent shall cause the Guarantors to, (i) promptly, but in no event later than twenty (20) Business Days after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to ~~make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws~~ the Merger and ~~regulations to consummate and make effective~~ the other transactions contemplated by this Agreement, ~~including, without limitation, commercially~~ and use their respective reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (iii) ~~obtain~~use their respective reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, ~~prior to the Closing Date, all licenses~~or consents, permits, ~~consents~~authorizations, waivers, clearances, approvals, ~~authorizations, qualifications~~ and ~~orders~~ expirations or terminations of ~~governmental authorities and parties to contracts with each such Purchaser~~ waiting periods are required to be obtained ~~by each such Purchaser~~ from, any third parties or Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (iiy) ~~defend against~~ promptly making all such filings and ~~respond~~ timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any ~~action~~Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, ~~suit~~and (iv) if a Government Entity required to grant a clearance or approval required to satisfy Section 6.1(b) (as it relates to the condition in Section 6.1(c) and/or Section 6.3(e)), ~~proceeding~~ Section 6.1(c), and/or Section 6.3(e) of this Agreement objects in writing to the Merger, or an authorized representative of such Governmental Entity indicates a reasonable likelihood of objecting to the Merger, on the basis of the participation of any Guarantor, then Parent shall, and Parent shall cause each of the Guarantors to, upon notice from the Company, use its reasonable best efforts promptly to (x) contact (as coordinated by Parent) up to ten (10) potential investors (including up to five (5) identified by the Company) in the aggregate for Parent and all of the Guarantors to solicit their interest in replacing such Guarantor on the same terms as are applicable to such Guarantor, (y) provide reasonable information of Parent and the Company and engage in good faith discussions with such potential investors regarding the Company’s business, in each case subject to an appropriate confidentiality agreement, and (z) cause a potential investor(s) to replace such Guarantor as promptly as practicable to enable the conditions set forth in Section 6.1(b) (as it relates to the condition in Section 6.1(c) and/or Section 6.3(e)), Section 6.1(c), and/or Section 6.3(e) to be satisfied prior to the End Date; provided that notwithstanding any provision herein to the contrary, Parent shall be entitled in its sole discretion to determine whether to permit any such potential investor to replace such Guarantor and in no event shall the failure to replace such Guarantor constitute a breach of any provision of this Agreement; provided that, notwithstanding anything to the contrary in Section 5.6(a), this Section 5.6(b), Section 5.6(d) or elsewhere in this Agreement, but subject to Section 5.6(c), in no event shall Parent, Merger Sub, any Guarantor or any of their respective Affiliates, be obligated in connection with the receipt of any consent, permit, authorization, ruling, waiver, clearance, approval, expiration or termination of any waiting period from any Governmental Entity or required under applicable Law, 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 make payments or enter into any commercial arrangement, or commit, or commit to take, any action which action limits the freedom of action of Parent, Merger Sub, any Guarantor or any of their respective Affiliates with respect to its or the Company’s businesses, product lines or assets. (c) Each of Parent, Merger Sub and the Company shall use, and Parent shall cause the Guarantors to use, their respective reasonable best efforts to obtain a written notification issued by the Committee on Foreign Investment in the United States (“CFIUS”) that it has concluded a review of the notification voluntarily provided pursuant to the Defense Production Act of 1950, as amended, and determined not to conduct a full investigation ~~against~~ or, if a full investigation is deemed to be required, notification that the U.S. government will not take action to prevent the transactions contemplated hereby from being consummated (such notification, the “CFIUS Approval”). Such reasonable best efforts shall include promptly making any pre-notification and notification filings required in connection with the CFIUS Approval, furnishing all information specified by regulation to be included in a joint voluntary notice to CFIUS, and using reasonable best efforts to provide any information requested by CFIUS or the Defense Security Service in connection with its review of the transactions contemplated hereby. With respect to obtaining CFIUS Approval, the term “reasonable best efforts” shall be interpreted in light of past CFIUS reviews and investigations relating to Government of Singapore Investment Corporation Pte Ltd. (d) The Company, Parent and Merger Sub shall cooperate and consult with each ~~such Purchaser~~ other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 5.6, and subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of the Company, Parent and Merger Sub agrees not to, and Parent shall cause the Guarantors not to, participate in any substantive meeting or discussion, either in Person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited or requested otherwise by such Governmental Entity, gives the other party the opportunity to attend and participate. (e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, but subject to Section 5.6(b) and Section 5.6(c), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging this Agreement or the consummation of the Merger or any other transaction contemplated by this Agreement including as violative of any Law, each of the Company, Parent and Merger Sub shall cooperate in all respects with each other and shall use, and Parent shall (in the case of a challenge based upon any Regulatory Law) cause any Guarantor party to such action or proceeding to use, their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in ~~each case~~ this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or Section 7.1(c) so long as ~~are necessary for consummation~~ such party has, prior to such termination, complied with its obligations under this Section 5.6. The parties hereto agree that all obligations of the ~~transactions contemplated by~~ Company, its Subsidiaries, Parent and Merger Sub relating to efforts to obtain the Financing are set forth exclusively in Section 5.11 and not this ~~Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~Section 5.6.

Appears in 1 contract

Samples: Merger Agreement (BMC Software Inc)

Efforts. (a) ~~The Company~~ From and after the date hereof, Purchaser and Seller shall, and shall ~~cooperate and~~ cause their respective Affiliates to, use ~~commercially reasonable~~ their respective best efforts to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective as promptly as reasonably practicable (but subject to the proviso to the first sentence of Section 2.3) the Transaction and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 8.1) and to consummate the Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ii) the execution and delivery of any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser and Seller shall, and shall cause their respective Affiliates to, use their respective best efforts to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Regulatory Approvals) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Entities (or Subsidiaries thereof) or any of their Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement. Additionally, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing. Without limiting the foregoing, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or merge or consolidate with any other Person, if such transaction would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing. (b) Prior to the Closing, Purchaser and Seller shall each keep the other reasonably apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreements and Section 5.3, each Party shall promptly consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreements and Section 5.3, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally of) any communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding the Transaction and the other transactions contemplated by this Agreement, and permit the other Party to review and discuss in advance, and consider in good faith the views of the other Party in connection with, any proposed communication with any such Governmental Entity. If either Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement, then such Party will make, or cause to be made, promptly and after consultation with the other Party, an appropriate response in compliance with such request. Neither Party nor its respective Affiliates or Representatives shall participate in any meeting with any Governmental Entity in connection with this Agreement and the Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreements and Section 5.3, each Party shall furnish the other Party with copies of all ~~filings required~~ correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to ~~be made by~~ this Agreement and the ~~Company necessary, proper~~ Transaction or ~~advisable under applicable laws and regulations to consummate and make effective~~ the other transactions contemplated by this Agreement, ~~including~~and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Purchaser and Seller may, ~~without limitation~~as each deems advisable and necessary, ~~commercially reasonable efforts~~ reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel 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 (Purchaser or Seller, as the case may be) or its legal counsel; provided, however, that materials provided pursuant to this Agreement may be redacted (i) ~~obtain~~to remove references concerning the valuation of or future plans for the Business or the Sale Process, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) ~~defend against~~ as necessary to comply with contractual obligations or applicable Law and ~~respond~~ (iii) as necessary to address reasonable privilege concerns. (c) Without limiting the foregoing, Purchaser and Seller shall, and shall cause their respective Affiliates to, file, as promptly as practicable, but in any ~~action~~event no later than ten (10) days after the date of this Agreement, ~~suit~~notifications under the HSR Act, ~~proceeding~~ and Purchaser and Seller shall, and shall cause their respective Affiliates to, file as promptly as practicable any other Filings under applicable Antitrust Laws, but in any event, any initial draft notifications of any other Filings shall be submitted no later than twenty (20) days after the date of this Agreement. (d) In furtherance of the foregoing, and notwithstanding anything in this Agreement to the contrary, Purchaser shall, and shall cause its Affiliates to, take all such action as may be necessary to avoid or ~~investigation against the Company relating~~ eliminate each and every impediment under any applicable Law with respect to the transactions contemplated ~~by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement~~ hereby and to ~~fulfill the conditions the Company is required to fulfill~~ resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably possible but subject to the proviso to the first sentence of Section 2.3 (and in any event so as to enable the Closing to occur prior to the Outside Date). In furtherance of the foregoing, Purchaser shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Business or of Purchaser or its Affiliates (and consent to any sale, divestiture, lease, license, transfer, disposition or other encumbering by the Seller Entities of any assets of the Business or to any agreement by any of the Seller Entities to take any of the foregoing actions) and agree to make any material changes (including through a licensing arrangement) or restriction on, or other impairment of Purchaser’s ability to own, retain or operate, any such assets, licenses, product lines, businesses or interests therein or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Purchaser or its Affiliates, including any actions that may be required to be taken to neutralize, mitigate or resolve any organizational conflict of interest to the extent necessary to obtain any Regulatory Approval. Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to take any action (i) that is not conditioned on the Closing or (ii) that relates to any Excluded Assets or Retained Businesses; and in no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Purchaser. (be) ~~Each~~ Whether or not the Transaction is consummated, Purchaser shall ~~cooperate~~ be responsible for all filing and ~~use commercially reasonable efforts~~ similar fees and payments payable to ~~take~~any Governmental Entity in order to obtain any Approvals pursuant to this Agreement, excluding, for avoidance of doubt, the fees of and payments to Seller’s legal and professional advisors and fees, costs and expenses solely related to any Approvals required by Seller or its Affiliates to complete the Pre-Closing Restructuring Steps that would not otherwise have been required in connection with the Transaction. (f) Notwithstanding anything in this Agreement to the contrary, except as required by Seller or its Affiliates to complete the Pre-Closing Restructuring Steps (and as would not otherwise have been required in connection with the Transaction), none of Seller, the other Seller Entities or any of their respective Affiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or ~~cause~~ the furnishing of any guarantees) to any Person to obtain any Approval that may be ~~taken~~required in connection with the Transaction (other than any Approval required to effect the completion of the Pre-Closing Restructuring Steps that would not otherwise have been required in connection with the Transaction). None of Seller, ~~all appropriate action~~ the other Seller Entities or any of their respective Affiliates shall have any Liability whatsoever to Purchaser or any of its Affiliates arising out of or relating to the failure to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this Agreement or because of ~~each such Purchaser, and to make~~the termination of any Contract or any default under, or ~~cause to be made~~acceleration or termination of or loss of any benefit under, ~~all filings required to be made by each such Purchaser necessary, proper~~ any Contract or ~~advisable under applicable laws and regulations to consummate and make effective~~ other Purchased Asset as a result of the Transaction or the other transactions contemplated by this Agreement; provided that Seller shall have complied in all material respects with its obligations hereunder. For the avoidance of doubt, ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the ~~Closing Date,~~ applicable provisions of Section 2.13. (g) As promptly as is reasonably practicable following execution and delivery of this Agreement and the receipt by Seller of all ~~licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties~~ information relating to ~~contracts with each such Purchaser required to be obtained by each such~~ Purchaser and ~~(ii) defend against and respond~~ its Affiliates required in connection with such notifications, Seller shall submit to ~~any action~~DCSA, ~~suit~~and, ~~proceeding or investigation against each such Purchaser relating~~ to the ~~transactions contemplated~~ extent required by ~~this Agreement~~Law, ~~in each case as are necessary for consummation~~ any other CSA, a notification of the Transaction and the other transactions contemplated by this Agreement pursuant to section 1-302(g) of the NISPOM. Seller and Purchaser shall reasonably cooperate in requesting from DCSA and any other such CSA approval for the continuation of all U.S. government facility security clearances necessary to ~~fulfill~~ conduct the ~~conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~Business in all material respects as presently conducted.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Aecom)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and ~~use commercially reasonable efforts to take~~conditions set forth in this Agreement, ~~or cause to be taken, all appropriate action required~~ each of the ~~Company~~parties hereto shall use its reasonable best efforts to, and shall assist and cooperate with the other parties, to ~~make, or cause to be made, all filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations to~~ (i) consummate and make effective the Merger and the other transactions contemplated ~~by this Agreement~~hereby, ~~including~~(ii) obtain as promptly as practicable all necessary actions or nonactions, ~~without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits~~waivers, consents, clearances, approvals, ~~authorizations~~and expirations or terminations of waiting periods, ~~qualifications and orders of governmental authorities and parties to contracts with~~ including the Company ~~required~~ Approvals and the Parent Approvals, from Governmental Entities and make such registrations and filings as may be necessary to ~~be obtained by the Company~~obtain an approval, ~~and~~ clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iiiii) obtain as promptly as practicable of all necessary consents, approvals or waivers from third parties, (iv) defend ~~against and respond to~~ any ~~action~~lawsuits or other legal proceedings, ~~suit~~whether judicial or administrative, ~~proceeding~~ challenging this Agreement or ~~investigation against~~ the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the Merger and the other transactions contemplated ~~by this Agreement~~ hereby and (v) execute and deliver any additional instruments reasonably necessary to ~~fulfill the conditions the Company is required to fulfill with respect to~~ consummate the transactions contemplated hereby. (b) ~~Each Purchaser~~ Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall ~~cooperate~~ (i) promptly after the date hereof, file any and all Notification and Report Forms required under the HSR Act with respect to the Merger and the other transactions contemplated hereby, and use ~~commercially~~ reasonable best efforts to ~~take~~cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) as promptly as practicable making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity, and (iv) use reasonable best efforts to take as promptly as practicable, or cause to be ~~taken~~taken as promptly as practicable, ~~all appropriate action required of each~~ such ~~Purchaser, and to make, or cause to~~ other actions as may be ~~made, all filings required to be made by each such Purchaser~~ necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated ~~by this Agreement~~hereby, ~~including~~to resolve such objections, ~~without limitation~~if any, ~~commercially reasonable efforts to (i) obtain~~as the United States Federal Trade Commission, ~~prior to~~ the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation Antitrust Division of the ~~transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate any impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date); provided that no party shall become subject to, or consent or agree to any requirement, condition, understanding, agreement or order of a Governmental Entity, unless such requirement, condition, understanding, agreement or order is binding on such party only in the event that the Closing occurs; and, provided, further, that nothing in this Agreement, or any “reasonable best efforts” standard generally, shall be deemed to require Parent to proffer to, or agree to, or to permit the Company to proffer to or agree to, with respect to assets or businesses of Parent, the Company or any of their respective Subsidiaries, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate or agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber before or after the Effective Time, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by the Company of any of its assets, licenses, operations, rights, product lines, businesses or interest therein or to any agreement by the Company to take any of the foregoing actions) or to agree to any changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s ability to own or operate, any such assets, licenses, product lines, businesses or interests therein or Parent’s ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the stock of the Surviving Corporation, if and to the extent that any such conduct, action or agreement would be reasonably likely to result in any adverse term, condition, limitation or effect that would be material (measured on a scale relative to the Company and its Subsidiaries taken as a whole) to Parent, the Company or the Surviving Corporation (such adverse term, condition, limitation or effect a “Materially Burdensome Regulatory Condition”). (c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the 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 Entity. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, Orders, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) the Xxxxxxx Act of 1890, the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership, control or operation of any of the operations or assets of the Company and its Subsidiaries, including those relating to money transmitting or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.

Appears in 1 contract

Samples: Merger Agreement (Fiserv Inc)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto will use ~~commercially~~ its reasonable best efforts promptly to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, ~~and~~ to ~~make~~file, or cause to be ~~made~~filed, all ~~filings required~~ documents and do, or cause to be ~~made by~~ done, and to assist and cooperate with the ~~Company~~ other parties in doing, all things necessary, proper or advisable under applicable ~~laws~~ Laws to consummate the Offer and ~~regulations~~ to consummate and make effective the Merger and the other transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary actions or nonactions, ~~prior to the Closing Date, all licenses, permits~~waivers, consents, clearances, approvals, ~~authorizations~~and expirations or terminations of waiting periods, ~~qualifications~~ including the Specified Approvals and ~~orders~~ the Parent Approvals, from Governmental Entities and the making of ~~governmental authorities~~ all necessary registrations and ~~parties~~ filings and the taking of all steps as may be necessary to ~~contracts with the Company required~~ obtain an approval, clearance or waiver from, or to ~~be obtained by the Company~~avoid an action or proceeding by, ~~and~~ any Governmental Entity, (ii) ~~defend against~~ the obtaining of all necessary consents, approvals or waivers from Third Parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer, the Merger or any other transaction contemplated by this Agreement and ~~respond~~ (iv) the execution and delivery of any additional instruments reasonably necessary to ~~any action, suit, proceeding or investigation against the Company relating to~~ consummate the transactions contemplated by this Agreement; provided, however, that in ~~each case as are necessary~~ no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any Third Party, other than a Governmental Entity, for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement (other than de minimis amounts or if Parent and ~~to fulfill~~ Merger Sub have provided adequate assurance of repayment). No party shall take any action that is intended or would reasonably be expected to, individually or in the aggregate, result in any of the Tender Offer Conditions or the conditions to the ~~Company is~~ Merger set forth in Article VII not being satisfied or the satisfaction of those conditions being materially delayed. (b) On or before January 18, 2008, each party hereto shall file, or cause to be filed by their respective “ultimate parent entities”, with the Federal Trade Commission and the Antitrust Division of the Department of Justice, any Notification and Report Forms and related material required to ~~fulfill~~ be filed by it under the HSR Act and the rules and regulations promulgated thereunder with respect to the transactions contemplated ~~hereby~~by this Agreement and thereafter shall promptly make any further filings pursuant thereto that may be necessary, proper or advisable and to respond on a timely basis to any requests for additional information made by either of such agencies. Parent shall pay the filing fees in connection with any such required filings. Upon and subject to the terms of this Section 6.6, Parent and the Company shall, and shall cause their respective Subsidiaries to use their respective reasonable efforts to obtain prompt termination of any waiting period under the HSR Act and prompt termination of any other requisite waiting period under any applicable Law. (bc) ~~Each Purchaser~~ From the date of this Agreement through the date of termination of the required waiting period under the HSR Act, the Company, Parent and Merger Sub and their respective Subsidiaries shall not take any action that would reasonably be expected to hinder or delay the obtaining of clearance or the expiration of the applicable waiting period under the HSR Act or any other applicable antitrust Law. (d) Subject to the terms and conditions herein provided and without limiting the foregoing, until the Agreement is terminated in accordance with its terms the Company and Parent shall (i) cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and ~~use commercially reasonable efforts~~ expirations or terminations of waiting periods are required to be obtained from, any Third Parties in connection with the execution and delivery of this Agreement and the consummation and effectiveness of, the Offer, the Merger and the other transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (ii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity and (iii) take, or cause to be taken, all ~~appropriate action required of each such Purchaser,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by each such Purchaser~~ other things necessary, proper or advisable ~~under applicable laws~~ to consummate the Offer and ~~regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law with respect to the Offer, the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Offer, the Merger and the other transactions contemplated hereby so as to enable the Expiration Date and the Closing to occur as soon as reasonably possible (and in any event no later than the End Date). (e) Notwithstanding any terms contained in this Agreement to the contrary, Merger Sub, Parent and its other Subsidiaries shall have no obligation to agree to (x) the sale, divestiture or disposition of any material assets or businesses of Parent or its Subsidiaries or controlled affiliates or of the Company or its Subsidiaries or (y) otherwise take or commit to take any actions that after the Closing Date would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) or controlled affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries (including the Surviving Corporation’s) businesses, product lines, services or assets; nor shall the Company or any of its Subsidiaries be required to consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its affiliates, unless (but only if Parent grants its written consent in Parent’s sole and absolute discretion) such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. (f) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby, including to the extent permitted by Law and with the exception of the HSR filings and competitively sensitive documents promptly furnishing the other with copies of notices or other communications sent or received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, to or from any Third Party with respect to such transactions. Subject to applicable Law and to the extent not prohibited by such Governmental Entity, the Company and Parent shall permit the other party to review in advance any proposed communication to any supervisory or Governmental Entity with the exception of HSR filings and competitively sensitive documents. To the extent practicable, each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in Person or by telephone, with any Governmental Entity in connection with such transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (g) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Offer, the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, ~~including, without limitation, commercially reasonable efforts~~ nothing in this Section 6.6 shall limit a party’s right to ~~(i) obtain~~terminate this Agreement pursuant to Article VIII so long as such party has, prior to ~~the Closing Date~~such termination, ~~all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ complied with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by its obligations under this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebySection 6.6.

Appears in 1 contract

Samples: Merger Agreement (Odyssey Healthcare Inc)

Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby, including seeking to avoid the entry of, or to have reversed, terminated, lifted or vacated, any stay, temporary restraining order or other injunctive relief or order entered by any Governmental Entity that could prevent or delay the transactions or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries or Parent or Merger Sub be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party (other than with respect to Parent and Merger Sub, any filing fees to any Governmental Entity) for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement. (b) The ~~Company~~ Company, Parent and Merger Sub shall ~~cooperate~~ (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement (the “HSR Filings”), and use ~~commercially reasonable~~ best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) promptly file any and all required applications and notifications under the Competition Act with respect to the Merger and the other transactions contemplated by this Agreement, including a submission requesting from the Commissioner of Competition an advance ruling certificate pursuant to subsection 102(1) of the Competition Act, and use best efforts to cause the expiration or termination of any applicable waiting periods under the Competition Act, except that the parties will only make a filing pursuant to Part IX of the Competition Act if determined by Parent to be reasonably advisable after consultation with the Company (the “Canadian Antitrust Filings” and together with the HSR Filings, the “Antitrust Filings”), (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, and (iv) take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated ~~by this Agreement~~hereby, ~~including~~including taking all such further action as may be necessary to resolve such objections, ~~without limitation~~if any, ~~commercially reasonable efforts to (i) obtain~~as the United States Federal Trade Commission, ~~prior to~~ the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation Antitrust Division of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill~~ United States Department of Justice, state antitrust enforcement authorities, competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law with respect to the transactions contemplated hereby~~. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser~~, and to ~~make,~~ avoid or ~~cause~~ eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to ~~be made, all filings required~~ the Merger so as to ~~be made by each such Purchaser necessary, proper or advisable under applicable laws~~ enable the Closing to occur as soon as reasonably possible (and ~~regulations to consummate and make effective~~ in any event no later than the ~~transactions contemplated by this Agreement~~End Date), including, without limitation, ~~commercially reasonable efforts~~ (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries and (iy) ~~obtain~~otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s or its Subsidiaries’) freedom of action with respect to, ~~prior~~ or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or 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 Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries not to) take or agree to take any action with respect to the ~~Closing Date~~matters set forth in this Section 5.6 that would be reasonably likely to prevent or materially delay the Closing. Notwithstanding any other provision of this Agreement, ~~all licenses~~the Equity Investors shall have no obligation, ~~permits~~and Parent shall have no obligation to cause the Equity Investors, ~~consents~~to sell, ~~approvals~~to hold separate or otherwise dispose of, ~~authorizations~~or to conduct, ~~qualifications~~ restrict, operate, invest or otherwise change the assets or business of the Equity Investors or their Affiliates, in each case other than the Company and ~~orders of governmental authorities~~ its Subsidiaries. (c) The Company, Parent and ~~parties to contracts~~ Merger Sub shall cooperate and consult with each ~~such Purchaser required~~ other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to ~~be obtained by~~ this Section 5.6, and subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall keep each ~~such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser~~ other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (w) to exclude documents filed in response to Items 4(c) and 4(d) of the HSR Filing, (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege concerns. Each of the Company, Parent and Merger Sub agrees not to participate in any substantive meeting or discussion, either in Person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of the Company, Parent and Merger Sub shall cooperate in all respects with each other and shall use their respective best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement. The foregoing notwithstanding or any other provision of this Agreement, nothing in ~~each case as are necessary for consummation of the transactions contemplated by~~ this Section 5.6 shall limit a party’s right to terminate this Agreement ~~and~~ pursuant to ~~fulfill the conditions each~~ Section 7.1(b) or Section 7.1(c) so long as such ~~Purchaser is required~~ party has, prior to ~~fulfill~~ such termination, complied with ~~respect to the transactions contemplated hereby~~its obligations under this Section 5.6.

Appears in 1 contract

Samples: Merger Agreement (Petsmart Inc)

Appears in 1 contract

Samples: Merger Agreement (Tw Telecom Inc.)

Efforts. ~~(a) The Company~~ Subject to the terms and conditions hereof and without limiting any of the provisions of Section 7.6, each Party shall ~~cooperate and~~ use its commercially reasonable efforts to ~~take~~(a) consummate the transactions contemplated by this Agreement as promptly as practicable and (b) obtain, or cause to be ~~taken~~obtained, all ~~appropriate action required of the Company~~actions or nonactions, and to make, or cause to be made, all filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvalswaivers, authorizations, ~~qualifications~~ expirations or terminations of waiting periods, clearances, consents and ~~orders of governmental authorities and parties to contracts with the Company~~ approvals required to be obtained by from any Governmental Authorities or third parties in connection with the ~~Company,~~ execution and ~~(ii) defend against~~ delivery of this Agreement and ~~respond to any action, suit, proceeding or investigation against~~ the ~~Company relating to~~ consummation of the transactions contemplated ~~by this Agreement, in each case as are necessary~~ hereby. The “commercially reasonable efforts” of (i) the Company or Seller shall not require any of the Company Group or its Representatives to expend any money to remedy any breach of any representation or warranty hereunder or to obtain any consent required for consummation of the transactions contemplated by this ~~Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each~~ Agreement, other than de minimis administrative fees or fees for which Purchaser ~~shall cooperate and use commercially reasonable efforts to take, or cause~~ agrees to be ~~taken~~responsible, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this ~~Agreement~~ Agreement; and (ii) Purchaser shall not require any of Purchaser or its Representatives to ~~fulfill the conditions each such Purchaser is~~ expend any money to remedy any breach of any representation or warranty hereunder or to obtain any consent required ~~to fulfill with respect to~~ for consummation of the transactions contemplated ~~hereby~~by this Agreement, other than de minimis administrative fees and any fees required to be paid by Purchaser under applicable Law in order for the consent of the relevant Governmental Authority to be obtained. Xxxxxx further agrees to deliver to Purchaser, at least five (5) Business Days prior to the Closing Date, for Purchaser’s review and comment, a preliminary copy of the ESOP Fairness Opinion. Seller shall use commercially reasonable efforts to cause the ESOP Financial Advisor to (A) consider in good faith Purchaser’s comments to the ESOP Fairness Opinion and (B) render the signed ESOP Fairness Opinion to the Trustee prior to the Outside Date.

Appears in 1 contract

Samples: Stock Purchase Agreement (Distribution Solutions Group, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall cooperate with each other and use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws and regulations~~ Applicable Law to consummate the Merger and ~~make effective~~ the other transactions contemplated hereby and by ~~this Agreement~~the Ancillary Agreements to which it is party to as reasonably promptly as practicable, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~preparing and filing as reasonably promptly as practicable after the date hereof with any Governmental Authority all documentation to effect all necessary filings, ~~prior~~ notices, petitions, statements, registrations, submissions of information, financial statements, records, applications and other documents, in each case, to the ~~Closing Date~~extent applicable, (ii) obtaining and maintaining all ~~licenses, permits~~approvals, consents, ~~approvals~~registrations, Permits, authorizations, ~~qualifications~~ licenses, waivers and ~~orders of governmental authorities and parties to contracts with the Company~~ other confirmations required to be obtained from any Governmental Authority, any Third Party or any Affiliate of the Company that are necessary or advisable in order to consummate the transactions contemplated hereby and by the ~~Company,~~ Ancillary Agreements to which it is party to and (iiiii) ~~defend against and respond to~~ defending or contesting any action, ~~suit,~~ suit or proceeding ~~or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by~~ challenging this Agreement ~~and to fulfill the conditions the Company is required to fulfill with respect to~~ or the transactions contemplated hereby. (b) ~~Each Purchaser~~ In furtherance and not in limitation of the foregoing, each of Parent and the Company shall ~~cooperate~~ make (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act as reasonably promptly as practicable (and in any event within fifteen (15) Business Days after the date hereof), (ii) make each other appropriate filing required pursuant to any Foreign Antitrust Law (collectively with the HSR Act, the “Antitrust Laws”) as reasonably promptly as practicable after the date hereof, (iii) use ~~commercially~~ reasonable best efforts to ~~take~~comply with requests under any applicable Antitrust Laws for additional information, documents or ~~cause~~ other materials received by each of them or any of their respective Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (iv) cooperate with each other in connection with any such filing (including, to ~~be taken~~the extent permitted by Applicable Law, providing copies of all ~~appropriate action required of each~~ such ~~Purchaser~~documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry of any Governmental Authority under any of the Antitrust Laws with respect to ~~make,~~ any such filing or ~~cause~~ any such transaction. Each such party shall use its reasonable best efforts to ~~be made,~~ furnish to each other all ~~filings~~ information required for any application or other filing to be made ~~by each such Purchaser necessary, proper or advisable under applicable laws and regulations~~ pursuant to ~~consummate and make effective~~ any Applicable Law in connection with the transactions contemplated hereby. Each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation or other inquiry without giving the other parties hereto reasonable prior notice of the meeting and, to the extent permitted by ~~this Agreement~~such Governmental Authority, ~~including~~the opportunity to attend and/or participate. Subject to Applicable Law, ~~without~~ the parties hereto will 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 hereto relating to proceedings under any of the Antitrust Laws. In furtherance of the foregoing, Parent and the Company shall consult in good faith regarding strategy for obtaining approvals or expiration or termination of any waiting period under applicable Antitrust Laws; provided, in the event of a dispute between Parent and the Company, the final determination regarding such strategy shall be made by Parent; provided, further, that in no event shall the Company or any of its Affiliates agree to any term, condition, obligation, liability, requirement, limitation, ~~commercially reasonable efforts to (i) obtain~~qualification, ~~prior to~~ remedy, commitment, sanction or other action in connection with the ~~Closing Date~~expiration of any such waiting period or obtaining of any such consent, ~~all licenses~~registration, ~~permits~~approval, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding permit or ~~investigation against each such Purchaser relating to~~ authorization that is not conditioned upon the ~~transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the transactions contemplated by this Agreement without the prior written consent of Parent. Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to ~~fulfill~~ the ~~conditions~~ other parties under this Section 8.1 as “outside counsel only”. Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient, unless express written permission is obtained in advance from the providing party. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege. (c) In furtherance of the foregoing, Parent shall (i) take any and all action necessary, including (A) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Subsidiaries, (B) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (C) terminating any venture or other arrangement, (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or (E) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries or restricting the Company or Parent or their respective Subsidiaries’ ability to operate their respective businesses (and, in each ~~such Purchaser is required~~ case, to ~~fulfill~~ enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with the Federal Trade Commission, the Department of Justice, any attorney general of any state of the United States, any other competition authority of any jurisdiction or any other Governmental Authority (collectively, “Antitrust Authority”) in connection with any of the foregoing and in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets by consenting to such action by the Company and provided, that, any such action may, at the discretion of the Company, be conditioned upon consummation of the Merger) (each, a “Divestiture Action”) and to ensure that no Governmental Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger or to ensure that no Antitrust Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger, fails to do so by the End Date; and (ii) not acquire by it or its Affiliates of any interest in any Person that primarily derives revenues from lines of business in the United States similar to the Company’s travel centers, if such action would make it materially more likely that there would arise any impediments under any Antitrust Law that may be asserted by any Governmental Authority to the consummation of the transactions contemplated hereby as soon as reasonably practicable. In the event that any action is threatened or instituted challenging the Merger as violative of any Antitrust Law, Parent shall take all action necessary, including any Divestiture Action to avoid or resolve such action. In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated hereby, Parent shall take as reasonably promptly as practicable any and all steps necessary to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the End Date. The Company shall cooperate with Parent and shall use commercially reasonable efforts to assist Parent in resisting and reducing any Divestiture Action. Notwithstanding any of the foregoing or anything contrary in this Agreement, nothing in this Agreement shall require Parent to (1) take any Divestiture Action if doing so would result in Parent, the Company or their respective subsidiaries divesting (by way of sale, separation or otherwise) any business or assets if the aggregate annual revenues generated from such businesses or assets in 2022 exceeds $175,000,000.00 or (2) otherwise take or commit to take any Divestiture Actions that together with actions in clause (1) would be reasonably likely to result in a loss of aggregate annual revenues (expressed as a positive number) together with an increase in aggregate annual expenses of Parent and its Subsidiaries, taken as a whole, in excess of $175,000,000.00.

Appears in 1 contract

Samples: Merger Agreement (TravelCenters of America Inc. /MD/)

Efforts. ~~(a) The Company shall cooperate and~~ Each Party will use commercially reasonable efforts to take, or to cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws~~ Laws and regulations to consummate and make effective the transactions contemplated by this Agreement, ~~including~~including (a) cooperation in determining whether any action by or in respect of, ~~without limitation~~or filing with, ~~commercially reasonable efforts~~ any governmental body, agency or other official authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated hereby; (ib) ~~obtain, prior to the Closing Date, all licenses, permits~~cooperation in seeking and obtaining any such actions, consents, approvals, ~~authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company,~~ or waivers; and (iic) ~~defend against and respond~~ the execution of any additional instruments necessary to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to consummate the transactions contemplated hereby. , and (bd) ~~Each Purchaser shall cooperate~~ the transmittal by Seller promptly after the Execution Date of all required notices necessary to seek waivers of preferential purchase rights and ~~use~~ consents necessary for the transfer of the Properties to Buyer and/or a Permitted Assignee, followed by commercially reasonable efforts until Closing to ~~take~~obtain such waivers and consents. Seller shall submit the form of all such notices to Buyer for prior approval, which shall not be unreasonably withheld, conditioned, or ~~cause to be taken, all appropriate action required of each such Purchaser~~delayed, and ~~to make~~Buyer shall promptly respond with any proposed revisions or additions thereto. Promptly after Closing, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to Buyer shall: (i) ~~obtain, prior to~~ record the Assignment and all state and federal assignments executed at the Closing ~~Date~~in all applicable real property records and/or, if applicable, the records of all ~~licenses, permits, consents, approvals, authorizations, qualifications~~ state and ~~orders of~~ federal governmental authorities and ~~parties~~ Buyer shall provide to ~~contracts with each~~ Seller copies of such ~~Purchaser required to be obtained by each such Purchaser and~~ recorded documents; (ii) ~~defend against~~ actively pursue the approval of all Customary Post-Closing Consents from the applicable governmental authorities; (iii) actively pursue all other consents and ~~respond to any action, suit, proceeding or investigation against each such Purchaser relating to~~ approvals that may be required in connection with the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation~~ assignment of the ~~transactions contemplated~~ Properties to Buyer and the assumption of the rights, interests, obligations and liabilities assumed by ~~this Agreement~~ Buyer hereunder that have not been obtained prior to Closing, provided that Seller shall reasonably cooperate with Buyer in obtaining such other consents and approvals, at Buyer’s sole cost and expense; and (iv) deliver all notices that may be required in connection with the assignment of the Properties to ~~fulfill~~ Buyer and the ~~conditions each such Purchaser is required to fulfill with respect to~~ assumption of the ~~transactions contemplated hereby~~rights, interests, obligations and liabilities assumed by Buyer hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Diamondback Energy, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, including Section 7.1(i), each of the Company and Parent shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, ~~all appropriate action required of~~ the ~~Company,~~ following actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ incidental things necessary, proper or advisable under applicable ~~laws and regulations~~ Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement: (i) preparing and filing, in consultation with the other Parties, as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain or maintain) all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party, in each case, that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement (including the Station Divestiture) (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, however, that, except as expressly provided in this Agreement, no party shall be required to pay (and, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), none of the Company or its Subsidiaries shall pay or agree to pay) any fee, penalty or other consideration to any other Third Party (other than any filing fees paid or payable to any Governmental Authority) for any approval, consent, registration, permit, authorization or other confirmation required for the consummation of the transactions contemplated by this Agreement; provided, ~~including~~further, ~~without limitation~~that the Parties agree and acknowledge that, ~~commercially reasonable efforts~~ except as provided in Section 8.1(b) and Section 8.2(d), receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing. (b) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable (i) ~~obtain, prior~~ appropriate filings of Notification and Report Forms pursuant to the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ HSR Act with respect to the transactions contemplated by this Agreement; provided that the filing by each of Parent and ~~orders of governmental authorities and parties to contracts with~~ the Company ~~required~~ of a Notification and Report Form pursuant to the HSR Act with respect to the Merger shall be ~~obtained~~ made within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and the Company, and (ii) ~~defend against~~ the FCC Applications with respect to the transactions contemplated by this Agreement; provided that the FCC Applications with respect to the Merger shall be made within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and ~~respond to any action, suit, proceeding or investigation against~~ the Company. Each of the Company and Parent shall respond promptly to all requests for additional information and documentary material by a Governmental Authority, and shall comply promptly with such requests unless the Parent and Company agree with each other to defer compliance, and shall use reasonable best efforts to take all other actions necessary and appropriate to obtain all necessary approvals and to cause the expiration or termination of applicable waiting periods as soon as practicable so as to permit consummation of the contemplated transactions as soon as practicable. (c) The Company and Parent shall each request early termination of the waiting period with respect to the Merger and the Station Divestiture, if applicable, under the HSR Act and neither Parent nor the Company shall, without the written consent of the other: (i) pull and refile any notification under the HSR Act, (ii) agree to extend any waiting period, (iii) enter into any timing agreement with any Governmental Authority, or (iv) agree with any Governmental Authority not to consummate the transactions contemplated by this Agreement for any period of time. (d) Except as prohibited by applicable Law or Order, each of Parent and the Company shall (i) cooperate and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive or procedural communication received by such Party from, or given by such Party to, the Federal Trade Commission, the DOJ, the FCC or any other similar Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement, (iii) consult with each other prior to taking any material position with respect to the filings under the HSR Act, the Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act, the Communications Act and the FCC Rules and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act, the Communications Act and the FCC Rules; provided, that documents or information required to be provided pursuant to this Section 7.1(d) (x) may be redacted as necessary (I) to comply with contractual arrangements, (II) to address good faith legal privilege concerns, or (III) to remove references concerning the valuation or alternative bidders, and (y) may be designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed consultants of the recipient and will not be disclosed by such outside counsel or consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. (e) The Company and Parent acknowledge that, to the extent reasonably necessary to expedite the grant by the FCC of any application for renewal of any FCC License with respect to any Company Station and thereby to facilitate the grant of the FCC Consent with respect to such Company Station, each of the Company, Parent and their applicable Subsidiaries shall be permitted to enter into tolling agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Company Station in connection with (i) any pending complaints that such Company Station aired programming that contained obscene, indecent or profane material or (ii) any other enforcement matters against such Company Station with respect to which the FCC may permit the Company or Parent (or any of their respective Subsidiaries) to enter into a tolling agreement. For each application for renewal of any Company Station License (a “Renewal Application”) that is pending on the date hereof or that must be filed prior to the grant of the FCC Consent, Parent shall request in the FCC Applications that the FCC apply its policy permitting the processing of transfer of control or assignment of FCC authorizations in transactions involving multiple stations notwithstanding the pendency of one or more Renewal Applications (the “FCC Renewal Policy”). Parent shall make such customary representations and agree to such customary undertakings in the FCC Applications as are ~~necessary~~ reasonably required to invoke the FCC Renewal Policy, including undertakings to assume the position of the applicant before the FCC with respect to any pending Renewal Application and to assume the corresponding regulatory risks relating to any such Renewal Application. (f) If the Closing shall not have occurred for any reason within the original effective period of the FCC Consent, and neither party shall have terminated this Agreement pursuant to the terms hereof, the Company and Parent shall use their reasonable best efforts to obtain one or more extensions of the effective period of the FCC Consent to permit consummation of the transactions hereunder. Upon receipt of the FCC Consent, the Company and Parent shall use their respective reasonable best efforts to maintain in effect the FCC Consent to permit consummation of the transactions hereunder. No extension of the FCC Consent shall limit the right of the Company and Parent to terminate this Agreement pursuant to the terms hereof. (g) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) not participate in or attend any meeting, or engage in any substantive or procedural conversation, telephone call or video conference, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a))) without the other, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto. (h) Subject to Section 7.1(i), each of the Company and Parent shall use reasonable best efforts to take actions to avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as possible, including (i) the use of reasonable best efforts to avoid the entry of, or the commencement of any Proceeding in any forum that could result in, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, including the proffer and agreement by Parent of its willingness to use such reasonable best efforts, and promptly to use such reasonable best efforts to undertake the Station Divestiture (as defined in Schedule 7.1(h)) and Approval Actions listed on Schedule 7.1(h), and (ii) the use of reasonable best efforts to take, in the event that any permanent or preliminary Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the transactions contemplated by this Agreement ~~and to fulfill~~ (including the ~~conditions the Company is required to fulfill~~ Station Divestiture) in accordance with ~~respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take~~its terms unlawful or that would delay, restrain, prevent, enjoin or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for otherwise prohibit consummation of the transactions contemplated by this Agreement (including the Station Divestiture), any and all steps (including the appeal thereof and the posting of a bond) necessary to ~~fulfill~~ resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement. In furtherance of the ~~conditions each~~ foregoing, Parent shall take the actions described in Schedule 7.1(h) in accordance with the terms thereof. (i) Notwithstanding anything herein to the contrary, nothing set forth in this Section 7.1 or otherwise in this Agreement shall: (i) require, or be construed to require the Company, Parent or any of their respective Subsidiaries to take, or agree to take, any Station Divestiture or Approval Action, unless such ~~Purchaser is required~~ Station Divestiture or Approval Action shall be conditioned upon the consummation of the Merger; (ii) require, or be construed to ~~fulfill~~ require Parent or any of its Subsidiaries to agree or propose to take or consent to the taking of any Station Divestiture, Approval Actions or any other actions contemplated by this Section 7.1, other than (x) the Station Divestiture and Approval Actions listed on Schedule 7.1(h); or (iii) require the Company, SpinCo or its Subsidiaries that are SpinCo Entities (x) to sell, divest, dispose of, hold separate or otherwise limit its freedom of action with respect to any SpinCo Asset (as defined in the ~~transactions contemplated hereby~~Separation and Distribution Agreement), (y) retain any RemainCo Asset or RemainCo Liability (as such terms are defined in the Separation and Distribution Agreement) unless (A) such retention would not reasonably be expected to prevent, impede or materially delay the Closing, (B) in the case of a RemainCo Asset, Parent agrees that the Company or SpinCo may retain such RemainCo Asset for no consideration or cost to the Company or SpinCo and (C) in the case of a RemainCo Liability, Parent agrees to fully reimburse and indemnify the Company or SpinCo, as applicable, against such RemainCo Liability, with the form and substance of the agreements by Parent referenced in each of the preceding clauses (B) and (C) to be reasonably satisfactory to the Company in its good faith determination. (j) The Company shall use commercially reasonable efforts to obtain any third party consents required under any Company Material Contract. Schedule 7.1(j) identifies those consents the receipt of which is a condition precedent to Parent’s obligation to close under this Agreement (the “Required Consents”), subject to the terms of Schedule 7.1(j).

Appears in 1 contract

Samples: Merger Agreement (Gray Television Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and shall ~~cooperate~~ cause its Subsidiaries to, use its reasonable best efforts (subject to, and ~~use commercially reasonable efforts~~ in accordance with, applicable Law) to ~~take~~take promptly, or to cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or to cause to be ~~made~~done, and to assist and to cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment). (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly as practicable after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the Specified Regulatory Clearances, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date (as hereinafter defined)), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ including to the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ extent permitted by Law promptly furnishing the other with copies of ~~governmental authorities and parties to contracts with~~ notices or other communications received by the Company ~~required~~ or Parent, as the case may be, or any of their Subsidiaries, from any third party and/or any Governmental Entity with respect thereto. (c) Subject to Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be ~~obtained by~~ instituted) challenging the ~~Company, and (ii) defend against and respond to~~ Merger or any ~~action, suit, proceeding or investigation against the Company relating to the transactions~~ other transaction contemplated by this Agreement, each of the Company and Parent shall cooperate in all respects with each ~~case as are necessary for~~ other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated by hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party's right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6. (d) For purposes of this Agreement, "Regulatory Law" means any and ~~to fulfill~~ all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the ~~conditions~~ consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the ~~Company is required to fulfill with respect to~~ Merger and the transactions contemplated ~~hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take~~thereby, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to including (i) ~~obtain~~the Sherman Act of 1890, ~~prior~~ the Clayton Antitrust Act of 1914, the HSR Act, xxx Xxderal Trade Commisxxxx Xxt of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ any ~~action, suit, proceeding~~ Law governing the direct or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ indirect ownership or control of any of the ~~transactions contemplated by this Agreement~~ operations or assets of the Company and ~~to fulfill~~ its Subsidiaries or (iii) any Law with the ~~conditions each such Purchaser is required to fulfill with respect to~~ purpose of protecting the ~~transactions contemplated hereby~~national security or the national economy of any nation.

Appears in 1 contract

Samples: Merger Agreement (Crane James R)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, each of the parties hereto shall cooperate with the other parties hereto and use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) consummate and make effective, as promptly as reasonably practicable, and in any event prior to the Outside Date, the Transactions, including preparing and filing promptly and fully all documentation necessary to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) execute and deliver any additional instruments necessary to consummate the Transactions, other than, in the case of each of clauses (i) through (iii), with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Gaming Laws, Gaming Authorities or Required Gaming Approvals, which are addressed in Section 5.03(d) below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall ~~cooperate~~ not without the consent of Parent, pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration in any form (including increased rent or other similar payment or commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (including a guaranty) or otherwise assume or incur or agree to assume or incur any liability, to obtain any consent or approval of any Person (other than any Governmental Authority) under any Contract. (b) In furtherance and not in limitation of the foregoing, the Company and Parent shall each (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor its Affiliates shall be required (and the Company shall not agree to any of the following without the express written consent of Parent): (i) (A) to offer, agree or consent to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (before or after the Closing) any assets, licenses, operations, rights, product lines, businesses or interests therein of Parent or any of its Affiliates (other than, after the Closing, the Company or any of its Subsidiaries), (B) to offer, agree or consent to terminate or amend any (x) existing relationship, contractual right or obligation of Parent or any of its Affiliates (other than, after the Closing, the | Company or any of its Subsidiaries) or (y) venture or other similar arrangement of Parent or any of its Affiliates (other than, after the Closing, the Company or any of its Subsidiaries), or (C) to offer, agree or consent to any impairment of, or restriction on, Parent or any of its Affiliates’ ability to own or operate any assets, licenses, operations, rights, product lines, businesses or interests (other than, after the Closing, any of the assets, licenses, operations, rights, product lines, businesses or interests of the Company or any of its Subsidiaries); or (ii) to commit to or effect any action that is not conditioned upon consummation of the Merger. (d) Parent and Merger Sub shall, and shall (i) cause any Person employed by Parent or its Affiliates and (ii) use ~~commercially~~ reasonable best efforts to ~~take~~cause any Person holding at least five (5)-percent of the outstanding capital stock of Parent, in each case that are reasonably necessary to obtain the Required Gaming Approvals to, as soon as reasonably practicable following the date of this Agreement, file, or cause to be ~~taken~~filed, with the applicable Gaming Authorities all ~~appropriate action required~~ applications for licensure, submissions for suitability review and other appropriate, necessary and requested documentation in connection with all Required Gaming Approvals (it being understood that any such Gaming Authority’s failure to deem any such filing complete shall not, in and of itself, constitute a failure by Parent or Merger Sub to have satisfied its filing obligations pursuant to this sentence). The parties hereto shall, and shall cause each of their respective Affiliates, as applicable, to use reasonable best efforts to comply with, pursue, and respond to any and all subsequent regulatory requests related to the Required Gaming Approvals, and use reasonable best efforts to cause the receipt of, and to eliminate any Restraint in respect of, the Required Gaming Approvals so as to obtain such Required Gaming Approvals as promptly as reasonably practicable following the date of this Agreement (it being understood that any failure to obtain any Required Gaming Approval shall not, in and of itself, constitute a failure by Parent, Merger Sub or the Company to have satisfied its obligations pursuant to this sentence). Parent and the Company shall use their respective reasonable best efforts to keep the other party reasonably informed of the status of any substantive communications with, and any substantive inquiries or requests for additional information from, any Gaming Authorities regarding the Required Gaming Approvals received by Parent or the Company or any of their respective Subsidiaries and Affiliates; provided, that nothing in this Section 5.03(d) shall require Parent or Merger Sub to cause the personal applications, personal application-related materials, or communications relating to such personal applications (including formal and informal interviews by the Gaming Authority relating to such personal applications) of any individual representative of Parent or Merger Sub (or their respective Affiliates) to be shared with the Company. Parent shall lead, control and direct the process by which the parties hereto seek to obtain the Required Gaming Approvals, including by making final determinations related to the review or investigation of the Transactions by the Gaming Authorities (including substantive analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto or any other Persons reasonably necessary to obtain the Required Gaming Approvals) relating to any Required Gaming Approvals) and attending all meetings and discussions with the Gaming Authorities except to the extent that the Gaming Authorities may request to communicate exclusively with the Company; provided, that (i) Parent shall, in good faith, take into consideration the Company’s views, suggestions and comments regarding such strategy and process and (ii) Parent shall propose the structure and use its reasonable best efforts to take all other actions as Parent reasonably determines is necessary to obtain the Required Gaming Approvals. The Company shall, and shall cause its Subsidiaries to, supply to Parent as promptly as practicable any additional information and documentary material relating to the Company, its Subsidiaries or any applicable individuals | that may be (or is reasonably expected to be) requested by any Gaming Authority, and use reasonable best efforts to ~~make~~furnish to Parent such information and reasonable assistance as Parent may request in connection with each of (i) the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Gaming Authority and (ii) Parent’s efforts to obtain the Required Gaming Approvals. (e) If during the period between the date hereof and the Effective Time, the parties hereto become aware that a consent, approval, authorization or other action by, or ~~cause~~ filing with or notification to, any Gaming Authority on the part of, or with respect to, the Company, Parent, Merger Sub, or any of their respective Subsidiaries and Affiliates is required in connection with the execution, delivery and performance of this Agreement or the consummation of the Transactions, which was not otherwise listed on Section 5.03(d) of the Company Disclosure Letter (an “Additional Required Gaming Approval”), such party hereto shall give prompt notice of such requirement to the other parties hereto, and, upon the written consent of all parties hereto (such consent not to be ~~made~~unreasonably withheld, conditioned or delayed), each such Additional Required Gaming Approval shall be deemed a Required Gaming Approval solely for purposes of Section 5.03. (f) If requested in writing by Parent (such request to set forth the specific Gaming Approval(s) to which the request relates) the Company shall, and shall cause its Subsidiaries to, take all ~~filings required~~ such actions as are reasonably necessary (which, for the avoidance of doubt, shall not include any actions that would prevent the Company’s ability to ~~be made~~ operate in the ordinary course of business prior to Closing) to surrender any Gaming Approval(s) held by the Company ~~necessary~~or any of its Subsidiaries and set forth in such request (and cease business in each state or jurisdiction to which such Gaming Approval relates); provided, ~~proper or advisable under applicable laws~~ that such surrender (and ~~regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to~~ cessation of business) shall only be required (i) ~~obtain, prior~~ to occur at such time the conditions to the Closing ~~Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ set forth in Article VI shall have been satisfied or waived or shall then be capable of being satisfied or waived if the Closing were to take place immediately following such surrender and ~~orders~~ cessation of ~~governmental authorities and parties to contracts~~ business (which Parent shall confirm in writing in connection with ~~the Company required to be obtained by the Company~~its request), and (ii) ~~defend against~~ to be effective immediately prior to, and ~~respond to~~ conditioned upon, the Closing. If Parent requests the surrender of any ~~action~~such Gaming Approval(s), ~~suit, proceeding or investigation against~~ and any such Gaming Approval is a Required Gaming Approval set forth in Section 5.03(d) of the Company ~~relating~~ Disclosure Letter, then for the purposes of Section 6.02(e) such Required Gaming Approval will, upon the effectiveness of such surrender (and cessation of business) in accordance with this Section 5.03, be deemed to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated herebyhave been obtained. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (Galaxy Gaming, Inc.)

Efforts. (a) ~~The Company~~ Each party shall ~~cooperate~~ supply as promptly as reasonably practicable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including by complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act, the EUMR, any other Governmental Consent and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of the Company, and to make, or cause to be made, all filings required to be made by the Company necessary, proper or advisable under any such other applicable laws ~~and regulations to consummate and make effective~~ for additional information, documents or other materials received by Parent or Dell or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice, the European Commission or any other Governmental Entity in connection with such applications or filings or the transactions contemplated by the Merger Agreement, this Agreement, ~~including~~and the related financings and transactions. (b) If any Governmental Entity asserts any objections under the HSR Act, ~~without limitation~~the EUMR, ~~commercially reasonable efforts to (i) obtain~~or any other applicable antitrust, ~~prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ competition or fair trade laws or with ~~the Company required to be obtained by the Company, and (ii) defend against and respond~~ respect to any ~~action~~other approval, ~~suit~~consent, ~~proceeding~~ notice or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill filing with a Governmental Entity with respect to the transactions contemplated ~~hereby~~hereby and/or the Merger and related financings and transactions and such objections relate to the activities or investments of the Purchaser or its Affiliates, the Purchaser shall provide reasonable assistance to Parent, the Equity Investors, MSDC Investor and the MD Investors, to enable Parent, the Equity Investors, MSDC Investor and the MD Investors to resolve such objections as soon as reasonably practicable. Notwithstanding the foregoing, the Purchaser’s obligation to provide reasonable assistance pursuant to this Section 4.1(b) shall in no event require Purchaser either to (x) divest any of its businesses or assets or take or agree to take any action or agree to any limitation or restriction on any element of its businesses or assets or (y) defend, or contest, any action or proceeding brought against it by a Governmental Entity in connection with the transactions contemplated herein. (bc) ~~Each~~ The Purchaser ~~shall cooperate and~~ will use ~~commercially~~ its reasonable best efforts to ~~take, or cause~~ supply and provide information that is complete and accurate in all material respects to ~~be taken, all appropriate action~~ Parent and its Subsidiaries and/or any Lenders to the extent reasonably required ~~of each~~ by any such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective Person in connection with the transactions contemplated by ~~this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to~~ the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated Merger Agreement and/or by this Agreement, including in ~~each case~~ connection with any governmental, regulatory, or stock exchange filings, filings or disclosures that may be required in connection with obtaining the Debt Financing and/or any other filings that may be required as ~~are necessary for consummation~~ a result of the ~~transactions contemplated by~~ Merger Agreement, this ~~Agreement~~ Agreement, and ~~to fulfill~~ the ~~conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~related financings and transactions.

Appears in 1 contract

Samples: Securities Purchase Agreement (Dell Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, each of Parent, Merger Sub and the Company shall ~~cooperate and~~ use commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and assist and cooperate with the other in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law or Order to consummate and make effective the ~~transactions contemplated by this Agreement~~Transactions as promptly as reasonably practicable, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~preparing and filing as promptly as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, ~~prior to the Closing Date~~proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all ~~licenses~~approvals, consents, registrations, permits, ~~consents, approvals, authorizations, qualifications~~ authorizations and ~~orders of governmental authorities and parties to contracts with the Company~~ other confirmations required to be obtained by from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate and make effective the Transactions (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are Scheme Conditions); provided, however, that none of the Company, its Subsidiaries nor any of their respective Representatives shall provide notice to, or request consent from, any Third Party with respect to this Agreement or the Transactions without first obtaining the prior written consent of Parent (such consent not to be unreasonably withheld or delayed). (b) The Company and Parent shall, as promptly as practicable and before the expiration of any relevant legal deadline, but in no event later than ten (10) Business Days following the execution and delivery of this Agreement, file with (i) the United States Federal Trade Commission and the United States Department of Justice the notification and report form and accompanying materials, if any, required under the HSR Act for the transactions contemplated hereby, and (ii) ~~defend against~~ any other Governmental Authority any other filings, reports, information and ~~respond to any action, suit, proceeding or investigation against the Company relating to~~ documentation required for the transactions contemplated ~~by this Agreement,~~ hereby pursuant to any applicable Competition Laws. Each of the Company and Parent shall furnish or cause to be furnished to each other’s respective counsel such necessary information and reasonable assistance as the other may request in ~~each case as are~~ connection with its preparation of any filing or submission that is necessary under the HSR Act and any Competition Laws. (c) The Company and Parent shall: (i) use their commercially reasonable efforts to promptly obtain any clearance required under the HSR Act and any Competition Laws for the consummation of ~~the transactions contemplated by~~ this Agreement and ~~to fulfill the conditions the Company is required to fulfill with respect to~~ the transactions contemplated hereby, (ii) keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any Governmental Authority, and (iii) comply promptly with any such inquiry or request and supply to any Governmental Authority without undue delay any additional information requested. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall be required to consent to or make any divestiture or other structural or conduct relief in order to obtain clearance from any Governmental Authority, and the Company shall not agree to any divestiture or other structural or conduct relief without the prior written consent of Parent. Any such structural or conduct relief affecting the business, assets, or operations of the Company shall be conditioned upon the prior occurrence of the Scheme implementation. (bd) ~~Each Purchaser shall~~ The Parties commit to instruct their respective counsel to cooperate with each other and use commercially reasonable efforts to ~~take, or cause to be taken, all appropriate action required~~ facilitate and expedite the identification and resolution of ~~each such Purchaser,~~ any issues arising under the HSR Act and ~~to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ any Competition Laws at the ~~transactions contemplated by this Agreement, including, without limitation,~~ earliest practicable dates. Such commercially reasonable efforts to and cooperation include such counsel’s undertaking (i) ~~obtain~~to keep each other appropriately informed of communications from and to personnel of the reviewing Governmental Authorities, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against~~ to confer with each other regarding appropriate contacts with and ~~respond~~ response to personnel of such Governmental Authorities and the content of any ~~action, suit, proceeding~~ such contacts or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement,~~ presentations. The Company and Parent shall not participate in ~~each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ any meeting or discussion with any Governmental Authority with respect to any such filings, applications, investigation or other inquiry without giving the ~~transactions contemplated hereby~~other Party prior notice of the meeting or discussion and, to the extent permitted by the relevant Governmental Authority, the opportunity to attend and participate in such meeting or material discussion (which, at the request of Parent or the Company, shall be limited to outside antitrust counsel only).

Appears in 1 contract

Samples: Implementation Agreement (PowerFleet, Inc.)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions hereof, each party hereto shall ~~cooperate and~~ use ~~commercially~~ their reasonable good faith efforts to take, or cause to be taken, all appropriate action required of the Company, and to make, or cause to be made, all filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by the Merger and this Agreement as promptly as practicable in accordance with this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) ~~Each~~ The Company and the Purchaser will as promptly as practicable file with the Federal Trade Commission and the Department of Justice the notification and report forms required for the transactions contemplated hereby and any supplemental information that may be reasonably requested in connection therewith pursuant to the HSR Act, which notification and report forms and supplemental information will comply in all material respects with the requirements of the HSR Act. The Company shall ~~cooperate~~ pay all filing fees required with respect to the notification, report and ~~use commercially reasonable efforts~~ other requirements of the HSR Act. (c) If at any time prior to ~~take~~the Effective Time any event or circumstance relating to either the Company or Purchaser or any of their respective subsidiaries, should be discovered by the Company or Purchaser, as the case may be, and which should be set forth in an amendment to the Proxy Statement, or ~~cause~~ Schedule 13E-3, the discovering parties will promptly inform the other party of such event or circumstance. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, including the execution of additional documents, assignments and other instruments, the proper officers and directors of each party to this Agreement shall take all such necessary action. (d) Each of the parties agrees to cooperate with each other in taking, or causing to be taken, all ~~appropriate action required of each such Purchaser~~actions necessary to delist the Common Shares from the NASDAQ National Market System ("NASDAQ") or the OTC Bulletin Board ("OTC") if the listing requirements would no longer be satisfied after the Effective Time, and to ~~make~~terminate registration of the Common Shares under the Exchange Act; provided, that such delisting and deregistration shall not be effective until after the Effective Time, unless such earlier time is required by NASDAQ or OTC, the SEC or other applicable governmental entity or self regulatory organization. (e) Purchaser shall, and shall cause its officers, directors and stockholders who are also executive officers of the Company, to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable use its best efforts to ~~(i) obtain, prior~~ ensure that the Company continues to operate its business in the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement ordinary course and to ~~fulfill~~ maintain sufficient cash to pay the ~~conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~aggregate Merger Price and Option Price.

Appears in 1 contract

Samples: Merger Agreement (Lexent Inc)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and ~~use commercially reasonable efforts to take~~conditions provided herein, ~~or cause to be taken, all appropriate action required~~ each of the Company, Parent and the Purchaser shall, and the Company shall cause each of its subsidiaries to, cooperate and use all reasonable efforts to make, or cause to be made, all filings ~~required~~ necessary or proper under applicable Laws and regulations, and to ~~be made by the Company necessary, proper~~ take all other actions necessary or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated by this Agreement, ~~including~~including but not limited to cooperation in the preparation and filing of the Offer Documents, ~~without limitation~~the Schedule 14D-9 and any actions or filings related thereto, the Proxy Statement, and filings required under the HSR Act, or other foreign filings and any amendments to any thereof, and cooperation in obtaining approvals necessary from Government Entities to continue fully existing operations. In addition, if at any time prior to the Effective Time any event or circumstance relating to either the Company or Parent or the Purchaser or any of their respective subsidiaries should be discovered by the Company or Parent, as the case may be, which should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, including the execution of additional instruments, the proper officers and directors of each party to this Agreement shall take all such necessary action. (b) Each of the parties will use its commercially reasonable efforts to obtain as promptly as practicable all Consents of any Governmental Entity or any other person required in connection with, and waivers of any Violations that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement, provided, however, that, notwithstanding any other provision of this Agreement, the Company shall not, without Parent's prior written consent, and Parent shall not be obligated to, agree to divest, hold separate or otherwise materially restrict the use or operation of any business or assets of Parent, Purchaser or the Company, which divestiture, agreement to hold separate, or other restriction would, in the good faith judgment of Parent, have a Material Adverse Effect on Parent or a Material Adverse Effect on the Company, as the case may be. (ic) ~~obtain~~Without limiting the foregoing, ~~prior~~ within five business days after the date of this Agreement, the Parent will make all necessary filings and submissions under the HSR Act, and the Company will make all necessary filings and submissions under the HSR Act as soon as practicable, but no later than the date required by the HSR Act and rules promulgated thereunder. The Company and Parent agree to comply with other requests for information from the Federal Trade Commission and/or the Antitrust Division of the Department of Justice ("Antitrust Governmental Entities"), to the ~~Closing Date~~extent required by applicable Law. The Company and Parent agree to share equally all filing fees associated with filing of the Notification and Report Form. Except as may be restricted by applicable Law, ~~all licenses, permits, consents, approvals, authorizations, qualifications~~ (a) the parties hereto shall cooperate with each other with respect to the obtaining of information needed for the preparation of the Notification and ~~orders of governmental authorities and parties to contracts with the Company~~ Report Forms required to be ~~obtained~~ filed pursuant to the HSR Act by the Company and Parent in connection with the transactions contemplated hereby, and (b) the parties shall use their reasonable efforts and shall cooperate in responding to any written or oral requests from Antitrust Governmental Entities for additional information or documentary evidence, and (c) the parties shall cooperate and shall provide notice and opportunity to consult regarding all meetings with Antitrust Governmental Entities, whether in person or telephonic, and regarding all written communications with Antitrust Governmental Entities, in connection with the transactions contemplated hereby. Company and the Parent will also cooperate to make as soon as practicable all necessary filings and submissions required by the antitrust or competition laws of any other jurisdiction. (d) The Company shall give Parent the opportunity to participate in the defense of any Litigation against the Company, ~~and (ii) defend against and respond~~ any of its subsidiaries and/or any of the Company's directors relating to any ~~action~~of the transactions contemplated by this Agreement. In the event that a claim is asserted against any of the parties hereto or any of their respective affiliates, ~~suit~~relating to, ~~proceeding~~ based in whole or ~~investigation against the Company relating to~~ in part on events or conditions occurring or existing in connection with, or arising out of, any of the transactions contemplated by this Agreement, in each ~~case as are necessary for consummation~~ of the ~~transactions contemplated by this Agreement and~~ parties hereto agrees to ~~fulfill~~ fully cooperate with the ~~conditions~~ other parties hereto in the ~~Company is required to fulfill with respect to~~ defense of any such claim at the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation expense of the ~~transactions contemplated by this Agreement and to fulfill the conditions each~~ party against whom such ~~Purchaser~~ claim is ~~required to fulfill with respect to the transactions contemplated hereby~~asserted.

Appears in 1 contract

Samples: Merger Agreement (Danaher Corp /De/)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall ~~cooperate and~~ use ~~commercially~~ its reasonable best efforts to ~~take~~take promptly, or to cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or to cause to be ~~made~~done, and to assist and to cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws to consummate and make ~~effective~~ effective, and to satisfy all conditions to, the Offer, the Merger and the other transactions contemplated hereby and to cause Merger Sub to purchase the Shares pursuant to the Offer on the earliest possible date following the satisfaction, or waiver by Parent or Merger Sub, of the Offer Conditions, including (i) the obtaining as promptly as practicable of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be reasonably necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining as promptly as practicable of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer, the Merger and the other transactions contemplated hereby, (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby, (v) in the case of Parent and Merger Sub, if any vote of the Company’s stockholders is required by applicable Law to consummate any of the transactions contemplated hereby, voting the Shares held by it in favor of the approval of this Agreement, ~~including~~the Merger and the other transactions contemplated hereby and (vi) if Merger Sub acquires sufficient Shares to merge Merger Sub and the Company without a vote of the Company’s stockholders, at the option of Parent (in its sole discretion) taking such actions as are necessary to cause the Company to be merged with and into Merger Sub with Merger Sub continuing as the surviving company in lieu of the Merger contemplated by Section 2.1. Notwithstanding anything set forth in this Agreement, under no circumstances shall Parent or Merger Sub be required, and the Company and its Subsidiaries shall not be permitted (without ~~limitation~~Parent’s written consent in its sole discretion) or required, ~~commercially reasonable efforts~~ to ~~(i) obtain~~take any action, ~~prior~~ or commit to take any action, or agree to any condition or restriction, involving Parent, the ~~Closing Date~~Company or their respective Subsidiaries pursuant to this Section 6.6 or otherwise in connection with obtaining the foregoing actions or nonactions, ~~all licenses~~waivers, clearances, permits, consents, approvals, expirations, terminations and authorizations of third parties or Governmental Entities, that would be, or would be reasonably likely to be, individually or in the aggregate, material to Parent or the Company and its Subsidiaries (including after the Closing Date, the Surviving Corporation and its Subsidiaries) taken as a whole, in each case measured on a scale relative to the Company and its Subsidiaries taken as a whole (a “Materially Burdensome Condition”); provided, that, if requested by Parent, the Company will take or commit to take any such action, or agree to any such condition or restriction, so long as such action, commitment, agreement, condition or restriction is binding on the Company only in the event the Offer Closing occurs. (b) Subject to the terms and conditions herein provided (including Section 6.6(a)) and without limiting the foregoing, the Company and Parent shall (i) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required or advisable, in the mutual reasonable judgment of Parent and the Company, to be made with, or consents, permits, authorizations, ~~qualifications~~ waivers, clearances, approvals, and ~~orders~~ expirations or terminations of ~~governmental authorities and parties to contracts with the Company~~ waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (ii) supply to any Governmental Entity as promptly as practicable additional information or documents that may be requested pursuant to any Regulatory Law or by ~~the Company~~such Governmental Entity, and (iiiii) ~~defend against~~ use reasonable best efforts to take promptly, or cause to be taken promptly, all other actions and ~~respond~~ do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or competition authorities of any other jurisdiction for which, in the reasonable judgment of Parent, consents, permits, authorizations, waivers, clearances, approvals and expirations or terminations of waiting periods are required or advisable with respect to the Offer, the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to such transactions so as to enable the Closing to occur as soon as reasonably possible (and to enable the Offer Closing to occur as soon as reasonably possible and in any event no later than the End Date), including (x) negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date limits the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or 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 Closing, materially delaying the Offer Closing or the Closing or delaying the Offer Closing beyond the End Date; provided, that the Company will only be required to take or commit to take any such action, or agree to any such condition or restriction, if such action, ~~suit~~commitment, agreement, condition or restriction is binding on the Company only in the event the Offer Closing occurs. (c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed communication to, including any filings with, any Governmental Entity, and confer in good faith to resolve any disagreement as to their strategy for communicating with any Governmental Entity or third party regarding any Regulatory Law. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Any such disclosures, rights to participate or provisions of information by one party to the other may be made on an outside counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information. (d) Subject to Section 6.6(a), in furtherance and not in limitation of the covenants of the parties contained in this Section 6.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or ~~investigation~~ threatened to be instituted) challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding; provided, however, that (subject to the following sentence) the Company shall control the defense and settlement of any stockholder litigation against the Company and/or its directors relating to the transactions contemplated by this Agreement, ~~in each case as are necessary for consummation~~ whether commenced prior to or after the execution and delivery of this Agreement; provided, further, however, that the ~~transactions contemplated by this Agreement and~~ Company’s counsel shall be reasonably acceptable to ~~fulfill the conditions~~ Parent, the Company ~~is required to fulfill~~ shall not take any significant positions relating any such litigation without consulting Parent in advance, and the Company shall consult with Parent with respect to litigation strategy on a regular basis. The Company agrees that it shall not settle any litigation commenced after the date of this Agreement against the Company or any of its directors or executive officers by any stockholder of the Company relating to this Agreement, the Offer, the Merger, or any other transaction contemplated hereby, without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed. (e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, Orders, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Offer, the Merger and the other transactions contemplated hereby~~. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take~~, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to including (i) ~~obtain~~the Xxxxxxx Act of 1890, ~~prior~~ the Xxxxxxx Antitrust Act of 1914, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ any ~~action, suit, proceeding~~ Law governing the direct or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ indirect ownership or control of any of the ~~transactions contemplated by this Agreement~~ operations or assets of the Company and ~~to fulfill~~ its Subsidiaries or (iii) any Law with the ~~conditions each such Purchaser is required to fulfill with respect to~~ purpose of protecting the ~~transactions contemplated hereby~~national security or the national economy of any nation.

Appears in 1 contract

Samples: Merger Agreement (Span America Medical Systems Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall ~~cooperate and~~ each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all things reasonably necessary under Applicable Law to consummate the Transactions, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of such commercially reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties and (iii) the execution and delivery of any additional instruments reasonably necessary to ~~be made by~~ consummate the Merger and to fully carry out the purposes of this Agreement. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.11, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of any notification and report forms and related material required under ~~applicable laws~~ the HSR Act) except by mutual consent confirmed in writing), (ii) provide or cause to be provided as promptly as practicable any information and ~~regulations to consummate~~ documentary material that may be requested by the DOJ or FTC under the HSR Act and ~~make effective the transactions contemplated by this Agreement, including, without limitation, commercially~~ (iii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC as promptly as practicable, including to cause to be lifted any restraint, injunction or other legal impediment to the Merger. (c) Subject to Applicable Law relating to the exchange of information, the Company and Parent and their respective counsel shall (i) ~~obtain~~have the right to review in advance, ~~prior~~ and to the ~~Closing Date~~extent practicable each shall consult the other on, ~~all licenses~~any material filing made with, ~~permits~~or written materials to be submitted to, ~~consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ any Governmental Authority in connection with the ~~Company required to be obtained by the Company~~Transactions, ~~and~~ (ii) ~~defend against~~ promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, the DOJ or the FTC and ~~respond to~~ (iii) promptly furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or affiliates, on the one hand, and any ~~action~~Governmental Authority or its respective staff, ~~suit~~on the other hand, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the ~~transactions contemplated hereby~~Transactions. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. Neither Parent nor the Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act without the prior written consent of the other. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.11 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.11, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and the Company Subsidiaries. (bd) ~~Each Purchaser~~ Parent shall ~~cooperate and use commercially reasonable efforts~~ have, except where prohibited by Applicable Law, responsibility for determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating to ~~take,~~ antitrust matters. Nothing in this Agreement shall obligate Parent or ~~cause to be taken, all appropriate action required~~ Merger Sub or any Subsidiary of ~~each such Purchaser~~Parent to, and the Company shall not and shall cause each Company Subsidiary to ~~make~~not, ~~or cause~~ agree to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to limit in any manner whatsoever (i) ~~obtain~~any rights of ownership of any securities (including the Shares), ~~prior~~ or to divest, dispose of or hold separate any securities or all or a portion of their respective businesses, assets or properties or of the ~~Closing Date~~business, ~~all licenses~~assets or properties of their respective Subsidiaries, ~~permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and~~ or (ii) ~~defend against and respond~~ the ability of such entities (A) to ~~any action, suit, proceeding~~ conduct their respective businesses or ~~investigation against each~~ own such ~~Purchaser relating~~ assets or properties or to conduct the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation~~ businesses or own the properties or assets of their respective Subsidiaries or (B) to control their respective businesses or operations or the ~~transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~businesses or operations of their respective Subsidiaries.

Appears in 1 contract

Samples: Merger Agreement (Actuate Corp)

Efforts. (a) ~~The Company~~ Each of Buyer and Seller shall ~~cooperate and~~ use ~~commercially reasonable~~ its best efforts to promptly take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~promptly do, or cause to be ~~made~~done, and to assist and cooperate with the other in doing, all ~~filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations~~ things necessary to consummate and make effective the Sale and the other transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable and, ~~including, without limitation, commercially reasonable efforts to (i) obtain~~in any event, prior to the ~~Closing Date~~earlier of the Outside Date and the termination of this Agreement, including (i) obtaining all ~~licenses~~necessary actions or nonactions, ~~permits~~waivers, consents, ~~approvals~~clearances, ~~authorizations~~Approvals, ~~qualifications~~ and ~~orders~~ expirations or terminations of ~~governmental authorities~~ waiting periods, from Governmental Entities and ~~parties~~ making all necessary registrations and filings in connection therewith, (ii) using its best efforts to ~~contracts with the Company required to be obtained by the Company~~obtain all necessary consents, Approvals or waivers from third parties, and (iiiii) ~~defend against and respond~~ subject to Section 5.5(c), defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Sale; provided, however, that in no event shall the Seller or its Subsidiaries be required to pay, or cause to be paid, any fee, penalty or other consideration to any ~~action, suit, proceeding or investigation against the Company relating to the transactions~~ third party (other than filing fees contemplated by this ~~Agreement, in each case as are necessary~~ Section 5.5(a)) for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement with an Acquired Company (and ~~to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~not Seller or its other Subsidiaries or Affiliates). (b) ~~Each Purchaser~~ Buyer and Seller shall ~~cooperate~~ promptly, but in no event later than fifteen (15) Business Days after the date hereof, file (or cause to be filed) any and all required pre-merger notification and report forms under the HSR Act with respect to the Sale. Buyer and Seller shall request early termination, if available, of any applicable waiting periods under the Antitrust Laws and shall respectively use ~~commercially~~ their best efforts to cause the expiration or termination of such waiting periods, and shall supply to the Antitrust Division of the United States Department of Justice (“Antitrust Division”) or the United States Federal Trade Commission (“FTC”) as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by any of them. Buyer and Seller also agree to make as promptly as practicable any filings required with respect to the Foreign Antitrust Approvals, including providing as promptly as practicable any additional information or documents that may be requested pursuant to any Law or in connection with such filings, and to take all other actions necessary in order to obtain the Foreign Antitrust Approvals as soon as practicable. (c) In furtherance of the covenants of the parties contained in this Section 5.5, (i) if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, each of the parties hereto shall use its reasonable best efforts to defend, contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction, or other order, whether temporary, preliminary or permanent, that results from such action or proceeding and that prohibits, prevents or restricts consummation of the Sale on or before the Outside Date and (ii) Buyer shall use best efforts to take, ~~or cause to be taken~~at Buyer’s sole cost, all ~~appropriate~~ such further action ~~required of~~ as may be necessary to avoid or eliminate each ~~such Purchaser~~and every impediment under any Antitrust Law so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), and ~~to make~~including, in the case of Buyer, proposing, negotiating, committing and effecting, by consent decree, hold separate order, or ~~cause to be made~~otherwise, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) ~~obtain~~sell, ~~prior~~ divest, dispose of or otherwise hold separate (including by establishing a trust or otherwise), any of the operations, divisions, product lines, customers, businesses, assets or properties of Buyer, the Acquired Companies or any of their respective controlled Affiliates, including the Business (other than Seller and its Affiliates following the Closing), (ii) terminate, amend or assign existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party), (iii) amend, assign or terminate 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 enter into such new licenses or other agreements of the Acquired Companies, (iv) enter into any order, consent decree or other agreement with a Governmental Entity to effectuate any of the foregoing, and (v) otherwise take or commit to take actions that after the Closing would limit Buyer’s freedom of action with respect to, or its ability to operate and/or retain any of the businesses, assets or properties of Buyer, the Acquired Companies or any of their respective controlled Affiliates (other than Seller and its Affiliates following the Closing), including the Business (the actions described in the foregoing clauses (i) - (v) being “Divestiture Actions”). All filing fees incurred in connection with the HSR Act shall be borne by Buyer. Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to take any action (i) that is not conditioned on the Closing ~~Date, all licenses, permits, consents, approvals, authorizations, qualifications~~ or (ii) that relates to any Excluded Assets or Excluded Businesses; and ~~orders~~ in no event shall Seller or any of ~~governmental authorities and parties to contracts with each such Purchaser~~ its Affiliates be required to be ~~obtained~~ the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Buyer. (d) Buyer and Seller shall cooperate and consult with each ~~such Purchaser~~ other in connection with the making of all filings, notifications, communications, submissions, and ~~(ii) defend against~~ any other actions pursuant to this Section 5.5, and, subject to applicable legal limitations and ~~respond to~~ the instructions of any ~~action~~Governmental Entity, ~~suit, proceeding or investigation against~~ Buyer and Seller shall keep each ~~such Purchaser~~ other apprised on a current basis of the status of matters relating to the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation~~ completion of the transactions contemplated thereby, including promptly notifying the other of any oral communication and furnishing the other with copies of notices or other written communications received by ~~this Agreement~~ Buyer and ~~to fulfill~~ Seller, as the ~~conditions each such Purchaser is required to fulfill~~ case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Buyer and Seller shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any substantive written communications or submissions to any Governmental Entity. Buyer and Seller agree not to participate in any meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions ~~contemplated hereby~~unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives the other party a reasonable opportunity to attend and participate.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Trinity Industries Inc)

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Sunrise Senior Living Inc)

Appears in 1 contract

Samples: Merger Agreement (Optelecom-Nkf, Inc.)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and shall ~~cooperate~~ cause its Subsidiaries to, use its reasonable best efforts (subject to, and ~~use commercially reasonable efforts~~ in accordance with, applicable Law) to ~~take~~take promptly, or to cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or to cause to be ~~made~~done, and to assist and to cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment). (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly as practicable after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the Specified Regulatory Clearances, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date (as hereinafter defined)), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ including to the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ extent permitted by Law promptly furnishing the other with copies of ~~governmental authorities and parties to contracts with~~ notices or other communications received by the Company ~~required~~ or Parent, as the case may be, or any of their Subsidiaries, from any third party and/or any Governmental Entity with respect thereto. (c) Subject to Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be ~~obtained by~~ instituted) challenging the ~~Company, and (ii) defend against and respond to~~ Merger or any ~~action, suit, proceeding or investigation against the Company relating to the transactions~~ other transaction contemplated by this Agreement, each of the Company and Parent shall cooperate in all respects with each ~~case as are necessary for~~ other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the~~ Merger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6. (bd) ~~Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required~~ For purposes of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.“

Appears in 1 contract

Samples: Merger Agreement (Egl Inc)

Efforts. (a) ~~The Company~~ Each of the parties shall ~~cooperate and~~ use ~~commercially~~ all reasonable best efforts to take, or cause to be taken, all appropriate action ~~required of the Company, and~~ to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law or otherwise to consummate and make effective the transactions contemplated by this ~~Agreement~~Agreement and the Ancillary Agreements as promptly as practicable, ~~including, without limitation, commercially reasonable efforts~~ including to (i) ~~obtain, prior to the Closing Date,~~ obtain from Governmental Authorities and other Persons all ~~licenses, permits,~~ consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for the consummation of the transactions contemplated by this Agreement and ~~to fulfill~~ the ~~conditions~~ Ancillary Agreements, (ii) within ten (10) Business Days after the ~~Company is~~ date of this Agreement, make all necessary filings, and thereafter make any other required ~~to fulfill~~ submissions, with respect to this Agreement required under the ~~transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take,~~ HSR Act or ~~cause to be taken, all appropriate action required of each such Purchaser~~any other applicable Law, and ~~to make~~(iii) have vacated, lifted, reversed or ~~cause to be made~~overturned any order, ~~all filings required to be made by each such Purchaser necessary~~decree, ~~proper~~ ruling, judgment, injunction or ~~advisable under applicable laws~~ other action (whether temporary, preliminary or permanent) that is in effect and ~~regulations to consummate and make effective~~ that enjoins, restrains, conditions, makes illegal or otherwise restricts or prohibits the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and the Ancillary Agreements. In furtherance and not in limitation of the foregoing, the Peach Entities shall permit JGW reasonably to ~~fulfill~~ participate in the ~~conditions~~ defense and settlement of any claim, suit or cause of action relating to this Agreement, the Merger or the other transactions contemplated hereby, and the Peach Entities shall not settle or compromise any such claim, suit or cause of action without JGW’s written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding anything herein to the contrary, neither party shall be required by this Section to take or agree to undertake any action, including entering into any consent decree, hold separate order or other arrangement, that would (A) require the divestiture of any material assets of JGW, the Peach Entities or any of their respective Affiliates or (B) limit in any material respect JGW’s freedom of action with respect to, or its ability to consolidate and control, Orchard and its Subsidiaries or any of their assets or businesses or any of JGW’s or its Affiliates’ other assets or businesses. (b) Without limitation to the provisions of subsection (a) hereof, the Peach Entities shall give promptly such notice to third parties and use commercially reasonable efforts to obtain such third party consents as JGW may reasonably deem necessary in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. JGW shall cooperate with and assist the Peach Entities in giving such notices and obtaining such consents and estoppel certificates; provided, however, JGW shall not have any obligation to give any guarantee or other consideration of any nature in connection with any such notice or consent or consent to any change in the terms of any agreement or arrangement that JGW in its sole discretion may deem adverse to the interests of JGW or Orchard or any of its Subsidiaries. (c) None of the parties shall, directly or indirectly, enter into any agreement with a Governmental Authority to, or represent to a Governmental Authority that it will, delay or not consummate the transactions contemplated by this Agreement or any Ancillary Agreement, except with the prior written consent of JGW or Peach Group, on behalf of the Peach Entities, as the case may be, such consent not to be unreasonably withheld. To the extent permitted by applicable Law and subject to any confidentiality restrictions of such Governmental Authority, each party shall (x) promptly notify the other party of any written communication to that party from any Governmental Authority and, subject to applicable Law and subject to any confidentiality restrictions of such ~~Purchaser is required~~ Governmental Authority, permit the other party to ~~fulfill~~ review in advance any proposed written communication to any such Governmental Authority and incorporate the other party’s reasonable comments, (y) not agree to participate in any substantive meeting or discussion with any such Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement or the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and (z) furnish the other party with copies of all correspondence, filings and written communications between them and their Affiliates and their respective representatives, on the one hand, and any such Governmental Authority or its respective staff on the other hand, with respect to this Agreement and the transactions contemplated hereby. Each party shall promptly notify the other parties in writing of any pending or, to the Knowledge of such party, threatened proceeding or investigation by any Governmental Authority or any other person (i) challenging this Agreement or the consummation of the transactions contemplated hereby or seeking material damages in connection with consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or (ii) seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement.

Appears in 1 contract

Samples: Merger Agreement (JGWPT Holdings Inc.)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall ~~cooperate and~~ use all commercially reasonable efforts to ~~take~~take promptly, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~obtaining all necessary actions or nonactions, ~~prior to the Closing Date, all licenses, permits~~waivers, consents, clearances, approvals, ~~authorizations~~and expirations or terminations of waiting periods, ~~qualifications and orders of governmental authorities and parties to contracts with~~ including the Company ~~required~~ Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to ~~be obtained by the Company~~obtain an approval, ~~and~~ clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) ~~defend against~~ obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and ~~respond~~ the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to ~~any action, suit, proceeding or investigation against the Company relating to~~ consummate the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) ~~Each Purchaser~~ Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. (c) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective commercially reasonable efforts to ~~take,~~ contest and resist any such action or ~~cause to be taken, all appropriate action required of each such Purchaser,~~ proceeding and to ~~make~~have vacated, lifted, reversed or ~~cause to be made~~overturned any decree, ~~all filings required to be made by each such Purchaser necessary~~judgment, ~~proper~~ injunction or ~~advisable under applicable laws~~ other order, whether temporary, preliminary or permanent, that is in effect and ~~regulations to consummate~~ that prohibits, prevents or restricts consummation of the Merger and ~~make effective~~ the other transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (Touchstone Software Corp /Ca/)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each party will use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof and in any event no later than the Termination Date, including using reasonable best efforts to accomplish the following as soon as practicable and in any event no later than the Termination Date (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, exemptions, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all steps as may be necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, exemptions, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, (A) each party hereto agrees to make ~~effective~~ an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable, and in any event within ten (10) Business Days after the execution of this Agreement, unless otherwise agreed to by the parties, and to substantially comply as promptly as practicable with any “second request” for additional information and documentary material under the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (B) Parent agrees to file or cause to be filed within 45 days following the execution of this Agreement “Form A” statements or equivalent change of control applications (or, as reasonably determined by Parent, “Form A” exemption requests or equivalent exemption requests) with the insurance commissioners or regulators or departments of health or other Governmental Entities in each jurisdiction where required by applicable Law; provided, however, to the extent that subsequent to the filing of any such “Form A” exemption request or equivalent exemption request it becomes reasonably apparent that such exemption request is reasonably unlikely to be granted in a timely manner, Parent shall, as promptly as reasonably practicable thereafter, withdraw such exemption request and file in substitution thereof a “Form A” statement or equivalent change of control application with the applicable Governmental Entity. (b) Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, exemptions, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law (as defined below) or from any Governmental Entity, (i) cooperate in all respects and consult 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, including by allowing the other party and/or its counsel to have a reasonable opportunity to review in advance and comment on drafts of any communications, filings and submissions (and documents submitted therewith) and considering in good faith any such comments; (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement; and (iii) where legally permissible, permit the other party to review any communication it gives to, and consult with each other in advance of any substantive meeting, telephone call, or conference with, the DOJ, the FTC, or such other Governmental Entity (including, ~~without limitation~~for the avoidance of doubt, ~~commercially reasonable efforts~~ with respect to all matters set forth in Section 7.3(a)) or other person (iprovided that materials may be redacted (A) ~~obtain~~to remove references concerning the valuation of Parent, the Company or any of their Subsidiaries, (B) as necessary to comply with contractual arrangements in effect prior to the ~~Closing Date~~date hereof, ~~all licenses~~and (C) as necessary to address reasonable privilege or confidentiality concerns), ~~permits~~and allow the other party and/or its counsel to attend and participate at any such meeting, ~~consents, approvals, authorizations, qualifications~~ telephone call or conference (whether in person or by telephone). Parent and ~~orders of governmental authorities and parties to contracts with~~ the Company ~~required~~ may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.3(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be 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 by in advance from the source of the materials (Parent or the Company, ~~and (ii~~as the case may be) ~~defend against and respond to any action~~or its legal counsel. For purposes of this Agreement, ~~suit~~“Regulatory Law” means the Xxxxxxx Act, ~~proceeding or investigation against~~ as amended, the ~~Company~~ Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, Laws relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such PurchaserHealthcare Regulatory Approvals, and all other national, federal or state, domestic or foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to ~~make~~prohibit, restrict or ~~cause to be made~~regulate actions having the purpose or effect of monopolization or restraint of trade, ~~all filings required to be made by each such Purchaser necessary~~affecting competition or market conditions through merger, ~~proper~~ acquisition or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding other transaction or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyeffectuating foreign investment.

Appears in 1 contract

Samples: Merger Agreement (Express Scripts Holding Co.)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each party will use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof and in any event no later than the Termination Date, including using reasonable best efforts to accomplish the following as soon as practicable and in any event no later than the Termination Date (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, exemptions, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all steps as may be necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, exemptions, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, (A) each party hereto agrees to make ~~effective~~ an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable, and in any event within ten (10) Business Days after the execution of this Agreement, unless otherwise agreed to by the parties, and to substantially comply as promptly as practicable with any “second request” for additional information and documentary material under the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (B) Parent agrees to file or cause to be filed within 45 days following the execution of this Agreement “Form A” statements or equivalent change of control applications (or, as reasonably determined by Parent, “Form A” exemption requests or equivalent exemption requests) with the insurance commissioners or regulators or departments of health or other Governmental Entities in each jurisdiction where required by applicable Law; provided, however, to the extent that subsequent to the filing of any such “Form A” exemption request or equivalent exemption request it becomes reasonably apparent that such exemption request is reasonably unlikely to be granted in a timely manner, Parent shall, as promptly as reasonably practicable thereafter, withdraw such exemption request and file in substitution thereof a “Form A” statement or equivalent change of control application with the applicable Governmental Entity. (b) Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, exemptions, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law (as defined below) or from any Governmental Entity, (i) cooperate in all respects and consult 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, including by allowing the other party and/or its counsel to have a reasonable opportunity to review in advance and comment on drafts of any communications, filings and submissions (and documents submitted therewith) and considering in good faith any such comments; (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), any other Governmental Entity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement; and (iii) where legally permissible, permit the other party to review any communication it gives to, and consult with each other in advance of any substantive meeting, telephone call, or conference with, the DOJ, the FTC, or such other Governmental Entity (including, ~~without limitation~~for the avoidance of doubt, ~~commercially reasonable efforts~~ with respect to all matters set forth in Section 7.3(a)) or other person (iprovided that materials may be redacted (A) ~~obtain~~to remove references concerning the valuation of Parent, the Company or any of their Subsidiaries, (B) as necessary to comply with contractual arrangements in effect prior to the ~~Closing Date~~date hereof, ~~all licenses~~and (C) as necessary to address reasonable privilege or confidentiality concerns), ~~permits~~and allow the other party and/or its counsel to attend and participate at any such meeting, ~~consents, approvals, authorizations, qualifications~~ telephone call or conference (whether in person or by telephone). Parent and ~~orders of governmental authorities and parties to contracts with~~ the Company ~~required~~ may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.3(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be 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 by in advance from the source of the materials (Parent or the Company, ~~and (ii~~as the case may be) ~~defend against and respond to any action~~or its legal counsel. For purposes of this Agreement, ~~suit~~“Regulatory Law” means the Xxxxxxx Act, ~~proceeding or investigation against~~ as amended, the ~~Company~~ Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, Laws relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such PurchaserHealthcare Regulatory Approvals, and all other national, federal or state, domestic or foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to ~~make~~prohibit, restrict or ~~cause to be made~~regulate actions having the purpose or effect of monopolization or restraint of trade, ~~all filings required to be made by each such Purchaser necessary~~affecting competition or market conditions through merger, ~~proper~~ acquisition or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding other transaction or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyeffectuating foreign investment.

Appears in 1 contract

Samples: Merger Agreement

Efforts. ~~(a) The Company~~ Each of the Parties shall ~~cooperate and~~ use commercially reasonable efforts to ~~take, or cause to be taken,~~ take all ~~appropriate action required of the Company,~~ actions and to ~~make, or cause to be made,~~ do all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws~~ to satisfy the conditions to Closing set forth herein and ~~regulations~~ to consummate ~~and make effective~~ the transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts~~ including to ~~(i) obtain, prior to the Closing Date,~~ obtain all ~~licenses~~waivers, permits, consents, ~~approvals~~approvals or other authorizations from Governmental Entities, ~~authorizations~~to effect all registrations, ~~qualifications~~ filings and ~~orders of governmental authorities~~ notices with or to Governmental Entities and ~~parties~~ to ~~contracts~~ otherwise comply with all applicable laws and regulations in connection with the ~~Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to~~ consummation of the transactions contemplated by this Agreement, ~~in each case as are necessary for consummation of the transactions contemplated by this Agreement~~ and ~~to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser~~ Seller shall ~~cooperate and~~ use commercially reasonable efforts to ~~take, or cause to~~ obtain the third party consents listed on Section 2.3 of the Disclosure Schedule as may be ~~taken, all appropriate action required of each~~ reasonably requested by Buyer. Buyer shall bear any out-of-pocket costs associated with obtaining such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenseswaivers, permits, consents, ~~approvals~~approvals or other authorizations. Without limiting the generality of the foregoing, ~~authorizations, qualifications~~ (a) each of the Parties shall promptly file any Notification and ~~orders of governmental authorities~~ Report Forms and ~~parties to contracts with each such Purchaser~~ related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act, shall use its commercially reasonable best efforts to obtain an early termination of the applicable waiting period, and shall make any further filings or information submissions pursuant thereto that may be ~~obtained~~ necessary, proper or advisable, and (b) with respect to the real property sublease identified on Section 2.9 of the Disclosure Schedule (the “Tysons Corner Lease”), Buyer shall use commercially reasonable efforts (i) cooperate with Seller in its efforts to obtain a landlord or sublandlord consent to the assignment or sublease of such sublease to Buyer (to the extent any such consent is deemed necessary or appropriate by ~~each such Purchaser~~ Seller), and (ii) ~~defend against and respond to any action, suit, proceeding or investigation against each~~ take such ~~Purchaser relating to the transactions contemplated by this Agreement, in each case~~ steps as are necessary ~~for consummation~~ and appropriate to become a substitute guarantor under the terms of the ~~transactions contemplated by this Agreement~~ Tysons Corner Lease; provided, that, with respect to clause (ii), in the event the sublandlord does not accept Buyer as a substitute guarantor under the terms of the Tysons Corner Lease, Buyer shall provide Seller, at Seller’s sole discretion, either (A) a letter of credit for an amount equal to two times the aggregate amount of Monthly Base Rent and Additional Rent (as defined in the Tysons Corner Lease) due pursuant to ~~fulfill~~ the ~~conditions each such Purchaser is required~~ Tysons Corner Lease during the period from the Closing to ~~fulfill~~ the termination date of the Tysons Corner Lease or (B) a back-up guaranty with respect to the ~~transactions contemplated hereby~~obligations guaranteed by Seller pursuant to the Tysons Corner Lease, which letter of credit or back-up guaranty, as the case may be, may be drawn upon or enforced by Seller in the event that such sublandlord exercises its rights with respect to Seller’s guaranty. Any letter of credit or back-up guaranty delivered pursuant to this Section 5.1 shall remain in full force and effect for so long as Seller’s guaranty with respect to the Tysons Corner Lease remains in effect.

Appears in 1 contract

Samples: Stock Purchase and Sale Agreement (Microstrategy Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions of this Agreement, each party shall ~~cooperate and~~ use its commercially reasonable efforts to perform its obligations hereunder and to take, or cause to be taken, ~~all appropriate action required of the Company,~~ and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required~~ things necessary, proper and advisable to ~~be made by~~ cause the ~~Company~~ Closing to occur as promptly as practicable including taking all actions necessary, proper or advisable ~~under applicable laws~~ to comply promptly with all legal requirements that may be imposed on it or any of its affiliates with respect to the Closing. None of the Sellers, the Company or Purchaser shall, and ~~regulations~~ each of the Sellers, the Company and Purchaser shall cause their respective affiliates that they control to ~~consummate~~ not, and ~~make effective~~ in the ~~transactions contemplated by this Agreement~~case of affiliates such party does not control, ~~including, without limitation,~~ shall use its commercially reasonable efforts to ~~(i) obtain~~cause such affiliate to not, ~~prior to the Closing Date~~take any action that would, ~~all licenses~~or that could reasonably be expected to, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to result in any ~~action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ of the ~~transactions contemplated by this Agreement and to fulfill the~~ conditions ~~the Company is required to fulfill with respect to the transactions contemplated hereby~~set forth in Article VII not being satisfied. (b) ~~Each~~ Sellers and Purchaser shall ~~cooperate~~ as promptly as practicable, but in no event later than twenty (20) business days following the execution and ~~use commercially reasonable efforts to take~~delivery of this Agreement, file or cause to be ~~taken, all appropriate action~~ filed with the U.S. Federal Trade Commission (the “FTC”) and the U.S. Department of Justice (the “DOJ”) the notification and report form required for the Acquisition and the other transactions contemplated hereby. Any such notification and report form shall be in substantial compliance with the requirements of ~~each~~ the HSR Act. Each party shall furnish to the other such ~~Purchaser~~necessary information in its possession 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. Each party shall keep the other parties appraised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request and shall promptly provide any supplemental information requested in connection with the filings made hereunder pursuant to ~~make, or cause to~~ the HSR Act. Any such supplemental information shall be ~~made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ in substantial compliance with the ~~transactions contemplated by this Agreement, including, without limitation, commercially reasonable~~ requirements of the HSR Act. Each party shall use its best efforts to ~~(i) obtain, prior to~~ obtain any clearance required under the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to HSR Act for the ~~transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the ~~transactions contemplated by this Agreement~~ Acquisition and ~~to fulfill~~ the ~~conditions each such Purchaser is required to fulfill with respect to the~~ other transactions contemplated hereby. The Sellers and Purchaser shall also cooperate to make any required regulatory filings outside the United States as promptly as practicable after the execution and delivery of this Agreement including as may be required by applicable North American Competition Laws; provided, that Visa International Service Association may review and comment on such filings.

Appears in 1 contract

Samples: Purchase Agreement (Total System Services Inc)

Appears in 1 contract

Samples: Merger Agreement (Geeknet, Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions of this Agreement, each of the Parties shall ~~cooperate and~~ use ~~commercially~~ their reasonable best efforts to ~~take~~consummate the transactions contemplated by this Agreement as promptly as practicable and in any event before the Longstop Date (or the Extended Longstop Date, as applicable), including preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings, obtaining as promptly as reasonably practicable (and in any event no later than the Longstop Date (or ~~cause~~ the Extended Longstop Date, as applicable)) all actions or nonactions, waivers, consents, registrations, expirations or terminations of waiting periods, approvals, permits and authorizations necessary or advisable to be ~~taken, all appropriate action required of the Company, and to make,~~ obtained from any third party or ~~cause to be made, all filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations~~ any Governmental Authority in order to consummate the transactions contemplated by this Agreement expeditiously and ~~make effective~~ executing and delivering any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, ~~including~~however, that in no event shall any of the Sellers or the Company Group Entities be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreement or otherwise. (b) In furtherance and not in limitation of the foregoing, each Party hereto agrees to make filings (or, for jurisdictions where submission of a draft prior to formal notification is appropriate, a draft thereof) if required under the Antitrust Laws of the jurisdictions listed in Section 6.6(b) of the Disclosure Schedule with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable, and in any event within seven (7) Business Days of the date hereof, after circumstances that trigger such a filing requirement occur, and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to applicable Law, including applicable Antitrust Law. None of the Parties shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period, or enter into a timing agreement, including any agreement to delay the consummation or not to consummate the transactions contemplated hereby, with any Governmental Authority without ~~limitation~~the prior written consent of the other Party. (c) Each of the Parties shall, and shall cause its Affiliates to, (i) consult and cooperate in all respects with each other Party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable Law, furnish to the other Parties as promptly as practicable all information required for any application or other filing to be made by the other Parties pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other Parties of any communication received by such Party from, or given by such Party to, any Governmental Authority 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 and, subject to applicable Law, furnish Buyer and Sellers promptly with copies of all correspondence, filings and communications between them and any Governmental Authority with respect to the transactions contemplated by this Agreement; (iv) respond as promptly as practicable to any inquiries received from, and supply as promptly as practicable any additional information or documentation that may be requested by any Governmental Authority in respect of such registrations, declarations and filings or such transactions; and (v) permit Buyer and Sellers to review any communication given by it to, and consult with each other in advance, and consider in good faith the reasonable comments of Buyer or Sellers, as applicable, in connection with, any filing, notice, application, submission, communication, meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private party, with any other Person. No Party shall independently participate in any meeting or communication with any Governmental Authority in respect of any such filings, investigation or other inquiry relating to any Antitrust Law without giving the other Parties sufficient prior Notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate in such substantive meeting or communication. Notwithstanding the foregoing, commercially and/or competitively sensitive information and materials of a Party will be provided to the other Parties on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other Party. Materials provided to any other Party or its counsel may be redacted to remove references (A) concerning the valuation of the Company Group Entities, (B) as necessary to comply with contractual arrangements, (C) as necessary to address reasonable attorney-client privilege or confidentiality concerns, or (D) other competitively sensitive material. (d) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Buyer shall, and shall cause its Affiliates to, use its reasonable best efforts to (i) ~~obtain~~resolve, ~~prior~~ avoid, or eliminate impediments or objections, if any, that may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law, or (ii) avoid the entry of, effect the dissolution of, and have vacated, modified, suspended, eliminated, lifted, reversed or overturned, any decree, decision, determination, order or judgment entered or issued, or that becomes reasonably foreseeable to be entered or issued, that would, or would reasonably be expected to, prevent, restrain, enjoin, prohibit, make unlawful, restrict or delay the consummation of the contemplated transactions, so as to enable the Parties to close the contemplated transactions expeditiously (but in no event later than the Longstop Date (or the Extended Longstop Date, as applicable)), including (A) proposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate orders or otherwise, the sale, lease, divesture, disposition, or license (or holding separate pending such disposition) of any assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Buyer, its Affiliates or the Company Group Entities, or any interest therein, (B) otherwise taking or committing or agreeing to restrictions or actions that after the Closing Date would limit Buyer’s, its Affiliates’ or the Company Group Entities’, freedom of action or operations with respect to, or its or their ability to retain, any assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Buyer, its Affiliates or the Company Group Entities, or any interest therein, (C) otherwise agreeing to any other structural or conduct remedy with respect to Buyer, its Affiliates or the Company Group Entities, or any interest therein, or (D) agreeing to enter into, modify or terminate existing contractual relationships, contractual rights or contractual obligations, and promptly effecting the sale, lease, license, divestiture, disposal and holding separate of, assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Buyer, its Affiliates or the Company Group Entities, or any interest therein (any such actions above in this Section 6.6(d), a “Regulatory Remedy”). Nothing in this Section 6.6(d) shall require the Company Group Entities to effectuate or agree to effectuate any Regulatory Remedy. Nothing in this Section 6.6(d) shall require Buyer or its Affiliates to effectuate or agree to effectuate any Regulatory Remedy that would give rise to a material adverse effect on the business, assets, liabilities, financial condition or results of operation of the Buyer and its Affiliates, considered as a whole, or the Company Group Entities, considered as a whole. (e) In furtherance and not in limitation of the foregoing, Buyer shall, and shall cause its Affiliates to, and Sellers and the Company Group Entities shall cooperate with Buyer to, contest, resist, and defend, at Buyer’s cost and expense, any administrative or judicial action or proceeding instituted (or threatened to be instituted) by a Governmental Authority or private party challenging this Agreement or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, and to have vacated, modified, suspended, eliminated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prevents, restrains, enjoins, prohibits, makes unlawful, restricts or delays consummation of the transactions contemplated by this Agreement. (f) Buyer will be solely responsible for and pay all filing fees payable to Governmental Authorities under any Antitrust Law. (g) From the date hereof until the Closing Date, ~~all licenses~~except with Sellers’ prior written consent, ~~permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company~~Buyer shall not, and ~~(ii) defend against and respond to~~ shall cause its Affiliates not to, take any action, ~~suit~~including entering into any transaction, ~~proceeding~~ or ~~investigation against~~ omit to take any action, that could reasonably be expected to prevent the ~~Company relating~~ expiration or termination of any waiting periods (including any extensions thereof) or any consent, approval or clearance with respect to the transactions contemplated by this Agreement, ~~in each case as are necessary for~~ or the consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions transaction contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Stock Purchase Agreement (EPAM Systems, Inc.)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions hereof (including the remainder of this Section 3.1) and the other Transaction Documents, each party shall ~~cooperate and~~ use its commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or ~~advisable~~ desirable under ~~applicable laws~~ Applicable Law to carry out the provisions hereof and ~~regulations~~ thereof and give effect to ~~consummate and make effective~~ the transactions contemplated by hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to the provisions of this ~~Agreement~~Section 3.1, ~~including~~including Section 3.1(d), ~~without limitation,~~ use its commercially reasonable efforts to obtain as promptly as reasonably practicable and advisable (ias determined in good faith by Amazon after consultation with the Company in accordance with the first sentence of Section 3.1(d)) ~~obtain, prior to the Closing Date,~~ all ~~licenses, permits, consents, approvals~~exemptions, authorizations, ~~qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company~~consents or approvals from, and ~~(ii) defend against~~ to make all filings with and ~~respond~~ to give all notices to, all third parties, including any ~~action~~Governmental Entities, ~~suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement,~~ required in ~~each case as are necessary for consummation of~~ connection with the transactions contemplated by this Agreement and the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as reasonably practicable and advisable, such information to ~~fulfill~~ any Governmental Entity as such Governmental Entity may request in connection therewith, and (ii) cooperate fully with the ~~conditions the Company is required~~ other party in promptly seeking to ~~fulfill with respect~~ obtain all such exemptions, authorizations, consents or approvals and to ~~the transactions contemplated hereby~~make all such filings and give such notices. (b) ~~Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required~~ Without limiting the generality of ~~each such Purchaser~~the foregoing, and only to ~~make, or cause to be made, all filings~~ the extent required ~~to be made~~ by ~~each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement,~~ Applicable Law (including, ~~without limitation~~for the avoidance of doubt, ~~commercially reasonable efforts to~~ any Antitrust Law), (i) ~~obtain~~as promptly as reasonably practicable after written notice from Amazon, ~~prior to~~ and in any event no later than in accordance with established regulatory timeframes, the ~~Closing~~ parties shall file any Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States Department of Justice (the date on which all such Notification and Report Forms required under the HSR Act have been initially filed, the “HSR Filing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser ”) and (ii) ~~defend against and respond to~~ as promptly as reasonably practicable after written notice from Amazon, file, make or give, as applicable, all other filings, requests or notices required under any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement~~other Antitrust Laws, in each case ~~as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ with respect to the ~~transactions contemplated hereby~~issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). Amazon shall be responsible for payment of all filing fees associated with the HSR Act and any other Antitrust Laws. In addition, following the receipt of the Initial Antitrust Clearance, to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as reasonably practicable and advisable (as determined in good faith by Amazon after consultation with the Company in accordance with the first sentence of Section 3.1(d)), any further required filings, requests or notices required under any Antitrust Laws, including the HSR Act (collectively, the “Other Antitrust Filings”). Without limiting the generality of the foregoing, each party shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any information and documentary material that may be required pursuant to the HSR Act or any other Antitrust Laws. For purposes of this Agreement, the term “Initial Antitrust Clearance” as of any time means (x) prior to such time, the expiration or termination of the waiting period under the HSR Act and the receipt of all exemptions, authorizations, consents or approvals, the making of all filings and the giving of all notices, and the expiration of all waiting periods, pursuant to any other Antitrust Laws, in each case to the extent required with respect to the Initial Filing Transaction, and (y) the absence at such time of any Applicable Law or Order issued by any court of competent jurisdiction or other legal restraint or prohibition under any Antitrust Law, in each case that has the effect of preventing the consummation of the Initial Filing Transaction.

Appears in 1 contract

Samples: Transaction Agreement (Plug Power Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall ~~cooperate and~~ use all commercially reasonable efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement. (b) Subject to the terms and conditions herein provided (including for the avoidance of doubt Section 5.1(a) of the Company Disclosure Letter) and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement, and such filings Parent and the Company shall agree upon, and with respect to such filings, Parent and the Company shall request early termination of any applicable waiting period under the HSR Act, and use all commercially reasonable efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use all reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly, but in no event later than twenty (20) Business Days after the date hereof, making the filing under the Irish Competition Act of 2002 as amended, and under the Italian Competition Law (Law No. 287/1990), provided, that the Company, Parent and Merger Sub respond promptly to any information requests regarding the preparation of such filings, and any other such filings and timely obtaining all applicable consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as reasonably practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, and (iv) take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things reasonably necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be reasonably necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice or competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date); provided, that notwithstanding the foregoing, nothing contained in this Agreement shall require or obligate Parent or any of its Subsidiaries or Affiliates to, and neither the Company nor any of its Subsidiaries shall, without the prior written consent of Parent, (x) propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licenses or disposition of any assets, products, rights, services, licenses or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries or any interest or interests therein or (y) otherwise take or commit to take any actions that after the Closing Date would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) or Affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, products, services, rights, licenses, product lines or assets or any interest or interests therein if such action would (a) be reasonably likely to have a material adverse effect on the business, financial condition, properties, assets or results of operations of the Company and its Subsidiaries, taken as a whole or (b) materially impair the benefits, taken as a whole, Parent reasonably expected to derive from the Merger and the other transactions contemplated by this Agreement; and provided, ~~including~~further that neither the Company nor any of its Subsidiaries shall become subject to, ~~without limitation~~or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. Except as otherwise permitted under this Agreement (including for the avoidance of doubt Section 5.1(a) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) take or agree to take any action that would be reasonably likely to prevent or materially delay the Closing. (c) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 5.6, and subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall keep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other material communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of the Company, Parent and Merger Sub agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of the Company, Parent and Merger Sub shall cooperate in all respects with each other and shall use their respective commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or Section 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6. (e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, the Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, (i) ~~obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ of ~~governmental authorities and parties to contracts~~ any notice or other communication received by such party from any Governmental Entity in connection with the ~~Company~~ transactions contemplated by this Agreement or from any Person alleging that the consent of such Person is or may be required ~~to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to~~ in connection with the transactions contemplated by this Agreement, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, the Surviving Corporation or Parent, (ii) of any Actions commenced or, to such party’s knowledge, threatened against, relating to or otherwise affecting such party or any of its Affiliates in ~~each case as are necessary for consummation of~~ connection with, arising from or relating to this Agreement or the transactions contemplated by this Agreement ~~and~~ (“Transaction Litigation”) or (iii) if such party becomes aware of any facts or circumstances that such party believes do, or with the passage of time are reasonably likely to, constitute a breach of this Agreement by the other party or the occurrence or non-occurrence, of any event that, individually or in the aggregate, would reasonably be expected to ~~fulfill the conditions the Company is required to fulfill with respect~~ cause any condition to the ~~transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts~~ obligations of any party hereto to ~~take,~~ effect the Merger or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ of the other transactions contemplated by this Agreement ~~and~~ not to ~~fulfill~~ be satisfied; provided that the ~~conditions each such Purchaser is required~~ delivery of any notice pursuant to ~~fulfill with respect~~ this Section 5.6(e) shall not cure any breach of any representation, warranty or covenant in this Agreement or otherwise limit or affect the remedies available hereunder to ~~the transactions contemplated hereby~~any party hereto.

Appears in 1 contract

Samples: Merger Agreement (Ancestry.com Inc.)

Appears in 1 contract

Samples: Merger Agreement (Gannett Co., Inc.)

Efforts. (a) ~~The~~ Except as otherwise provided herein the Company and Parent shall ~~cooperate and~~ each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company necessary, proper or advisable~~ things reasonably necessary under ~~applicable laws and regulations~~ Applicable Law to consummate ~~and make effective~~ the ~~transactions contemplated by this Agreement~~Merger, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary actions, ~~prior~~ waivers, consents and approvals from Governmental Entities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or Proceeding by, any Governmental Entities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be required or permitted to pay, and Parent shall not be obligated to pay or permit or agree to the ~~Closing Date~~Company paying, ~~all licenses, permits, consents, approvals, authorizations, qualifications~~ any material cash consideration to any Third Party from whom consent or approval is required and ~~orders of governmental authorities and parties to contracts with~~ the Company shall not be required or permitted to modify or enter into any Contract or Company Real Property Lease or limit or dispose of any non-cash rights, assets or properties, and Parent shall not be ~~obtained by~~ obligated to permit or agree to the Company’s modification or entrance into any Contract or Company Real Property Lease or, on behalf of itself or any of its pre-Closing Affiliates, modify or enter into any agreement or limit or dispose of any non-cash rights, assets or properties, in each case pursuant to this Section 6.10(a) or any provision that cross-references the proviso to this Section 6.10(a). Parent shall have the right to control the strategy, tactics and other aspects of obtaining clearances under the HSR Act or other Applicable Laws or consents of Third Parties. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.10, each of Parent and the Company, as applicable, shall (i) promptly prepare and file any notification and report forms and related material required under the HSR Act and any additional filings or notifications and related material that are necessary or proper to permit consummation of the Merger and (ii) ~~defend against~~ provide or cause to be provided as promptly as practicable any information and ~~respond to~~ documentary material that may be requested by the DOJ, FTC or any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill other Governmental Entity with respect to the transactions contemplated hereby. . In the case of the Notification and Report Form pursuant to the HSR Act (~~b) Each Purchaser~~ pursuant to which the parties shall ~~cooperate~~ request early termination of the applicable waiting period under the HSR Act), each of Parent and ~~use commercially reasonable efforts to take,~~ the Company shall make or cause to be ~~taken~~made the appropriate filing within ten (10) Business Days after the date hereof. (c) Subject to Applicable Law relating to the exchange of information and the last sentence of Section 6.10(a), the Company and Parent and their respective Subsidiaries, Affiliates and counsel shall (i) provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all ~~appropriate action required~~ communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of ~~each such Purchaser, and~~ any party hereto relating to ~~make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable~~ Proceedings under ~~applicable laws and regulations to consummate and make effective~~ the Antitrust Laws) with a Governmental Entity in connection with the transactions contemplated ~~by this Agreement~~hereby, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ promptly inform each other of any ~~action~~material communication (or other material correspondence or memoranda) received from, ~~suit~~or given to, ~~proceeding or investigation against each such Purchaser relating to~~ any Governmental Entity in connection with the transactions contemplated ~~by this Agreement~~hereby and (iii) promptly furnish each other with copies of all material correspondence, ~~in each case as are necessary for consummation of~~ filings and written communications between them or their Subsidiaries or Affiliates, on the ~~transactions contemplated by this Agreement~~ one hand, and ~~to fulfill~~ any Governmental Entity or its respective staff, on the ~~conditions each such Purchaser is required to fulfill~~ other hand, with respect to the transactions contemplated hereby and (iv) agree not to extend any waiting period under the HSR Act or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the other party not to be unreasonably withheld or delayed. The Company and Parent and their respective Subsidiaries and Affiliates shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby. The parties may designate any competitively sensitive materials provided to the other under this Section 6.10(c) as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. This Section 6.10(c) shall not apply in respect of Taxes. (d) Notwithstanding anything else contained herein, Parent shall not be required to, and the Company shall not, without the prior written consent of Parent, offer, propose, agree, or commit (i) to sell, divest, hold separate, license, cause a Third Party to acquire, or otherwise dispose of (A) any of the respective Affiliates of the Company or Parent or (B) any of the respective operations, divisions, businesses, product lines, customers, assets, properties or rights of Parent, the Company or any of their respective Affiliates, prior to, contemporaneously with or after the Closing and regardless as to whether a Third Party purchaser must be identified or approved prior to the Closing (a “Divestiture”), (ii) to take any other actions that may limit Parent’s, its Affiliates’, the Company’s or its Affiliates’ conduct in any way or any of the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products lines, customers, assets, properties or rights (a “Restraint”) or (iii) to enter into any Order, consent decree or other agreement to effectuate a Divestiture or Restraint, except to the extent that such actions set forth in clauses (i) through (iii) above would not be reasonably likely to result in, either individually or in the aggregate, a material adverse effect on the business, assets, Liabilities, financial condition or results of operations of the Company. (e) Parent shall not, and shall cause its Affiliates not to, acquire or agree to acquire, in any manner, any business, Person or assets, or take any other action, if the entering into of a definitive agreement relating to, or the consummation of such acquisition or 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 Governmental Entity necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity 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.

Appears in 1 contract

Samples: Merger Agreement (General Mills Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions hereof (including the remainder of this Section 3.1) and the other Transaction Documents, each party shall ~~cooperate and~~ use its commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or ~~advisable~~ desirable under ~~applicable laws~~ Applicable Law to carry out the provisions hereof and ~~regulations~~ thereof and give effect to ~~consummate and make effective~~ the transactions contemplated by hereby and thereby. In furtherance and not in limitation of the foregoing, each of the parties shall (i) subject to the provisions of this ~~Agreement~~Section 3.1, ~~including~~including Section 3.1(d), ~~without limitation,~~ use its commercially reasonable efforts to obtain as promptly as reasonably practicable and advisable (ias determined in good faith by Walmart after consultation with the Company in accordance with the first sentence of Section 3.1(d)) ~~obtain, prior to the Closing Date,~~ all ~~licenses, permits, consents, approvals~~exemptions, authorizations, ~~qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company~~consents or approvals from, and ~~(ii) defend against~~ to make all filings with and ~~respond~~ to give all notices to, all third parties, including any ~~action~~Governmental Entities, ~~suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement,~~ required in ~~each case as are necessary for consummation of~~ connection with the transactions contemplated by this Agreement and the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as reasonably practicable and advisable, such information to ~~fulfill~~ any Governmental Entity as such Governmental Entity may request in connection therewith, and (ii) cooperate fully with the ~~conditions the Company is required~~ other party in promptly seeking to ~~fulfill with respect~~ obtain all such exemptions, authorizations, consents or approvals and to ~~the transactions contemplated hereby~~make all such filings and give such notices. (b) ~~Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required~~ Without limiting the generality of ~~each such Purchaser~~the foregoing, and only to ~~make, or cause to be made, all filings~~ the extent required ~~to be made~~ by ~~each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement,~~ Applicable Law (including, ~~without limitation~~for the avoidance of doubt, ~~commercially reasonable efforts to~~ any Antitrust Law), (i) ~~obtain~~as promptly as reasonably practicable after written notice from Walmart, ~~prior to~~ and in any event no later than in accordance with established regulatory timeframes, the ~~Closing~~ parties shall file any Notification and Report Forms required under the HSR Act with the Federal Trade Commission and the United States Department of Justice (the date on which all such Notification and Report Forms required under the HSR Act have been initially filed, the “HSR Filing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser ”) and (ii) ~~defend against and respond to~~ as promptly as reasonably practicable after written notice from Walmart, file, make or give, as applicable, all other filings, requests or notices required under any ~~action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement~~other Antitrust Laws, in each case ~~as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ with respect to the ~~transactions contemplated hereby.~~issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). Walmart shall be responsible for payment of all filing fees associated with the HSR Act and any other Antitrust Laws. In addition, following the receipt of the Initial Antitrust Clearance, to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as reasonably practicable and advisable (as determined in good faith by Walmart after consultation with the Company in accordance with the first sentence of Section 3.1(d)), any further required filings, requests or notices required under any Antitrust Laws, including the HSR Act (collectively, the “Other Antitrust Filings”). Without limiting the generality of the foregoing, each party shall supply as promptly as reasonably practicable to the appropriate Governmental Entities any information and documentary material that may be required pursuant to the HSR Act or any other Antitrust Laws. For purposes of this Agreement, the term “Initial Antitrust

Appears in 1 contract

Samples: Transaction Agreement (Plug Power Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and shall ~~cooperate~~ cause its Subsidiaries to, use its reasonable best efforts (subject to, and ~~use commercially reasonable efforts~~ in accordance with, applicable Law) to ~~take~~take promptly, or to cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do promptly, or to cause to be ~~made~~done, and to assist and to cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger Agreement and Plan of Merger -49- and the other transactions contemplated ~~by this Agreement~~hereby, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary waivers, ~~prior to the Closing Date, all licenses, permits, consents,~~ consents and approvals, ~~authorizations, qualifications and orders of governmental authorities and parties to contracts with~~ including the Company ~~required~~ Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to ~~be obtained by the Company~~obtain an approval or waiver from, ~~and~~ or to avoid an action or proceeding by, any Governmental Entity, (ii) ~~defend against~~ the obtaining of all necessary consents, approvals or waivers from third parties and ~~respond to~~ (iii) the defending of any ~~action~~lawsuits or other legal proceedings, ~~suit~~whether judicial or administrative, ~~proceeding~~ challenging this Agreement or ~~investigation against~~ the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of ~~the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to~~ the transactions contemplated hereby. (b) ~~Each Purchaser~~ Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (ii) use ~~commercially~~ reasonable best efforts to take, or to cause to be taken, all ~~appropriate action required of each such Purchaser,~~ other actions and to ~~make~~do, or to cause to be ~~made~~done, all ~~filings required to be made by each such Purchaser~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as any state or federal regulatory authorities of any other nation or other jurisdiction or any other Person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date (as hereinafter defined)), and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, use reasonable best efforts to keep each other apprised of the status of matters, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their Subsidiaries, from any third party and/or any Governmental Entity related to the approval of the Merger, allowing each other to review in advance any filing or written materials submitted to any Governmental Entity related to the approval of the Merger, and providing the other party and its counsel with advance notice of and, to the extent permitted by Law, the opportunity to participate in any discussion, telephone call or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry related to the approval of the Merger. (c) Subject to Section 5.10, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial Proceeding, including any Proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement, ~~including~~each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated hereby; provided, however, that, without ~~limitation~~the consent of Parent, ~~commercially reasonable efforts~~ nothing in this Agreement shall require Parent, the Company Agreement and Plan of Merger -50- or the Surviving Corporation, or their respective Subsidiaries or Affiliates, to sell, hold separate or otherwise dispose of any assets or business, or any interest in any of their respective Subsidiaries or Affiliates, in whole or in part, or to conduct any aspect of their business in a specified manner, or to permit the sale, holding separate of, or other disposition of, any assets or business, in whole or in part, or to agree to take any of the foregoing actions, or to agree to any condition or to enter into any agreement to obtain such consent, registration, approval, Permit or authorization that, in the judgment of Parent, would be adverse to Parent or the Surviving Corporation. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6. (d) For purposes of this Agreement, “Regulatory Law” means any and all Laws requiring notice to, filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) ~~obtain~~the Xxxxxxx Act of 1890, ~~prior~~ the Xxxxxxx Antitrust Act of 1914, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ any ~~action, suit, proceeding~~ Law governing the direct or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ indirect ownership or control of any of the ~~transactions contemplated by this Agreement~~ operations or assets of the Company and ~~to fulfill~~ its Subsidiaries or (iii) any Law with the ~~conditions each such Purchaser is required to fulfill with respect to~~ purpose of protecting the ~~transactions contemplated hereby~~national security of any nation.

Appears in 1 contract

Samples: Merger Agreement

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each party will use ~~commercially~~ its reasonable best efforts to (i) take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws~~ Applicable Laws and regulations to consummate the Merger and ~~make effective~~ the other transactions contemplated by this ~~Agreement~~Agreement as soon as practicable after the date hereof, ~~including~~including preparing and filing promptly and fully all documentation to effect all necessary filings, ~~without limitation~~notices, ~~commercially reasonable efforts to~~ petitions, statements, registrations, submissions of information, applications and other documents (~~i) obtain~~including any required or recommended filings under Applicable Law and, ~~prior to~~ in the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ case of ~~governmental authorities and parties to contracts with~~ the Company ~~required~~ and its Subsidiaries, any amendments, modifications or affirmations of exemptive orders and no-action positions of the SEC as are necessary, proper or advisable under Applicable Law to ~~be obtained by~~ allow the ~~Company~~Surviving Company and its Subsidiaries to operate their businesses following the Merger in substantially the same manner as the Company and its Subsidiaries operate on the date hereof), and (ii) ~~defend against~~ obtain all approvals, consents, registrations, permits, authorizations and ~~respond~~ other confirmations from any Governmental Authority necessary, proper or advisable to ~~any action, suit, proceeding or investigation against~~ consummate the ~~Company relating to~~ Merger and the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation of the~~ other transactions contemplated by this Agreement and to ~~fulfill~~ conduct the ~~conditions~~ business of the Surviving Company and its Subsidiaries after the Closing Date in the same manner as conducted by the Company ~~is required~~ and its Subsidiaries as of the date hereof (including each of the consents, approvals and Permits identified in Section 3.1(f)(ii) of the Company Disclosure Schedule) as soon as practicable after the date hereof. In furtherance and not in limitation of the foregoing (x), each party hereto agrees to ~~fulfill~~ make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated ~~hereby~~hereby as promptly as practicable and in any event within ten Business Days of the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable and (y) if any state takeover statute or similar law becomes applicable to the Merger or the other transactions contemplated by this Agreement, take all action necessary to ensure that the Merger and such other transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and use reasonable best efforts to otherwise minimize the effect of such law on the Merger and such other transactions. (b) Each ~~Purchaser shall cooperate~~ of Parent and ~~use commercially reasonable~~ the Company shall, in connection with the efforts referenced in Section 5.4(a) to ~~take, or cause to be taken,~~ obtain all ~~appropriate action required of each such Purchaser,~~ requisite approvals and ~~to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ authorizations for the transactions contemplated by this ~~Agreement~~Agreement under the HSR Act or any other Regulatory Law, ~~including, without limitation, commercially~~ use its reasonable best efforts to (i) ~~obtain, prior to the Closing Date,~~ cooperate in all ~~licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ respects with each ~~such Purchaser required to be obtained~~ other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by ~~each such Purchaser and~~ a private party; (ii) ~~defend against~~ promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and ~~respond~~ of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (iii) permit the other party to review any ~~action~~communication given by it to, ~~suit~~and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the DOJ, the FTC or ~~investigation against~~ such other applicable Governmental Authority or other Person, give the other party the opportunity to attend and participate in such meetings and conferences. For purposes of this Agreement, “Regulatory Law” means the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. In furtherance and not in limitation of the covenants of the parties contained in Section 5.4(a) and this Section 5.4(b), each ~~such Purchaser relating~~ party hereto shall use its reasonable best efforts to resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Regulatory Law. Notwithstanding anything to the contrary contained in this Agreement, in ~~each case as are necessary for consummation~~ connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Merger, 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 that, in the ~~transactions contemplated by this Agreement and~~ sole discretion of Parent, would reasonably be expected to ~~fulfill~~ limit (A) the ~~conditions each such Purchaser is required to fulfill~~ freedom of action of Parent or any of its Subsidiaries or Affiliates with respect to the ~~transactions contemplated hereby~~operation of, or Parent’s or any of its Subsidiaries’ or Affiliates’ ability to retain, the Company or any businesses, product lines or assets of the Company, or (B) the ability to retain, own or operate any material portion of the businesses, product lines, or assets, of Parent or any of its Subsidiaries or Affiliates, or alter or restrict in any way the business or commercial practices of the Company, Parent or any of its Subsidiaries or Affiliates.

Appears in 1 contract

Samples: Merger Agreement (Highbury Financial Inc)

Efforts. (a) ~~The~~ Except as otherwise provided herein the Company and Parent shall ~~cooperate and~~ each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company necessary, proper or advisable~~ things reasonably necessary under ~~applicable laws and regulations~~ Applicable Law to consummate ~~and make effective~~ the ~~transactions contemplated by this Agreement~~Merger, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the obtaining of all necessary actions, waivers, consents and approvals from Governmental Entities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or Proceeding by, any Governmental Entities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be required or permitted to pay (and, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), none of the Company or its Subsidiaries shall pay or agree to pay), and Parent shall not be obligated to pay or permit or agree to the ~~Closing Date~~Company paying, ~~all licenses, permits, consents, approvals, authorizations, qualifications~~ any material cash consideration to any Third Party from whom consent or approval is required and ~~orders of governmental authorities and parties to contracts with~~ the Company shall not be required or permitted to modify or enter into any Contract or Company Real Property Lease or limit or dispose of any non-cash rights, assets or properties, and Parent shall not be ~~obtained by~~ obligated to permit or agree to the Company’s modification or entrance into any Contract or Company Real Property Lease or, on behalf of itself or any of its pre-Closing Affiliates, modify or enter into any agreement or limit or dispose of any non-cash rights, assets or properties, in each case pursuant to this Section 6.10(a) or any provision that cross-references the proviso to this Section 6.10(a). Parent shall have the right to control the strategy, tactics and other aspects of obtaining clearances under Applicable Laws or consents of Third Parties. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.10, each of Parent and the Company, as applicable, shall (i) promptly prepare and file any filings or notifications and related material that are necessary or proper to permit consummation of the Merger and (ii) ~~defend against~~ provide or cause to be provided as promptly as practicable any information and ~~respond to~~ documentary material that may be requested by the DOJ, FTC or any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill other Governmental Entity with respect to the transactions contemplated hereby. (bc) ~~Each Purchaser~~ Subject to Applicable Law relating to the exchange of information and the last sentence of Section 6.10(a), the Company and Parent and their respective Subsidiaries, Affiliates and counsel shall ~~cooperate~~ (i) provide each other with a reasonable advance opportunity to review and ~~use commercially reasonable efforts~~ comment upon and consider in good faith the views of the other in connection with all communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable Proceedings under ~~applicable laws and regulations to consummate and make effective~~ the Antitrust Laws) with a Governmental Entity in connection with the transactions contemplated ~~by this Agreement~~hereby, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ promptly inform each other of any ~~action~~material communication (or other material correspondence or memoranda) received from, ~~suit~~or given to, ~~proceeding or investigation against each such Purchaser relating to~~ any Governmental Entity in connection with the transactions contemplated ~~by this Agreement~~hereby and (iii) promptly furnish each other with copies of all material correspondence, ~~in each case as are necessary for consummation of~~ filings and written communications between them or their Subsidiaries or Affiliates, on the ~~transactions contemplated by this Agreement~~ one hand, and ~~to fulfill~~ any Governmental Entity or its respective staff, on the ~~conditions each such Purchaser is required to fulfill~~ other hand, with respect to the transactions contemplated hereby and (iv) agree not to extend any waiting period or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby, except with the prior written consent of the other party not to be unreasonably withheld or delayed. The Company and Parent and their respective Subsidiaries and Affiliates shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby. The parties may designate any competitively sensitive materials provided to the other under this Section 6.10(c) as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. This Section 6.10(c) shall not apply in respect of Taxes. (d) Notwithstanding anything else contained herein, Parent shall not be required to, and the Company shall not, without the prior written consent of Parent, offer, propose, agree, or commit (i) to sell, divest, hold separate, license, cause a Third Party to acquire, or otherwise dispose of (A) any of the respective Affiliates of the Company or Parent or (B) any of the respective operations, divisions, businesses, product lines, customers, assets, properties or rights of Parent, the Company or any of their respective Affiliates, prior to, contemporaneously with or after the Closing and regardless as to whether a Third Party purchaser must be identified or approved prior to the Closing (a “Divestiture”), (ii) to take any other actions that may limit Parent’s, its Affiliates’, the Company’s or its Affiliates’ conduct in any way or any of the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products lines, customers, assets, properties or rights (a “Restraint”) or (iii) to enter into any Order, consent decree or other agreement to effectuate a Divestiture or Restraint.

Appears in 1 contract

Samples: Merger Agreement (Astea International Inc)

Efforts. (a) ~~The Company shall cooperate and~~ Each of the Parties agrees to use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective as promptly as practicable the transactions contemplated hereby, including the Merger, and to cooperate with the other in connection with the foregoing, including using its reasonable best efforts (i) to obtain all consents, approvals, rulings or authorizations that are required to be obtained under any Requirement of Law, (ii) to obtain any consents required from third parties in connection with the consummation of the transactions contemplated by this Agreement, ~~including~~(iii) to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties hereto to consummate the transactions contemplated hereby, ~~without limitation~~including the Merger, ~~commercially reasonable efforts~~ (iv) to effect as promptly as practicable all necessary registrations, filings and responses to requests for additional Information or documentary material from a Governmental Authority, if any, (iv) ~~obtain~~to fulfill all conditions to this Agreement (including ensuring that the Estimated Closing Net Equity and Estimated Closing Cash shall be equal to or greater than equal to or greater than the Target Closing Net Equity and Target Closing Cash, and that the Estimated Closing Indebtedness is equal to or less than the Target Closing Indebtedness) and (vi) in the event that eSpeed waives the condition set forth in Section 8.2(c), to ensure that as promptly as practicable after Closing, (A) the Closing Net Equity (excluding the net equity of eSpeed as of immediately prior to the Closing), shall be equal to or greater than the Target Closing ~~Date~~Net Equity, ~~all licenses~~(B) the Closing Cash (excluding the cash, ~~permits~~cash equivalents and marketable securities of eSpeed as of immediately prior to the Closing), ~~consents~~shall be equal to or greater than the Target Closing Cash and (C) the aggregate Closing Indebtedness (excluding the Indebtedness of eSpeed as of immediately prior to the Closing) shall be equal to or less than the Target Closing Indebtedness. Notwithstanding anything to the contrary in this Agreement, ~~approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ in connection with ~~the Company~~ any filing or submission required or action to be ~~obtained~~ taken by the ~~Company,~~ Parties to consummate the Merger and ~~(ii) defend against and respond to any action, suit, proceeding or investigation against~~ the ~~Company relating to the~~ other transactions contemplated by this Agreement, in no event shall the Parties or any of their 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 (x) the effectiveness or consummation of which is not conditional on the consummation of the Merger or (y) that individually or in the aggregate is or would reasonably be expected to be materially adverse (with materiality, for purposes of this provision, being measured in relation to the size of eSpeed and its Subsidiaries taken as a whole) to eSpeed and its Subsidiaries or BGC Partners and its Subsidiaries, either before or after giving effect to the Merger (a “Burdensome Condition”). (b) Further, and without limiting the generality of the rest of this Section 7.2, each ~~case~~ of the Parties shall promptly (i) furnish to the other such necessary Information and reasonable assistance as ~~are necessary for consummation~~ the other Party may request in connection with the foregoing, (ii) inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated hereby, and (iii) provide counsel for the other Party with copies of all filings made by ~~this Agreement~~ such Party, and all correspondence between such Party (and its advisors) with any Governmental Authority and any other Information supplied by such Party and such Party’s Subsidiaries to ~~fulfill~~ a Governmental Authority or received from such a Governmental Authority in connection with the ~~conditions~~ transactions contemplated hereby and as necessary to comply with contractual arrangements. The Parties shall, subject to Applicable Law, permit the ~~Company is required~~ counsel to ~~fulfill~~ the other Parties to review in advance, and consider in good faith the views of such other Parties in connection with, any proposed written communication to any Governmental Authority in connection with ~~respect to~~ the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (Espeed Inc)

Efforts. (a) ~~The Company shall cooperate~~ Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use ~~commercially reasonable~~ its best efforts to take, or cause to be taken, all ~~appropriate action required~~ actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper and advisable to consummate and make effective, as promptly as practicable, the transaction contemplated by this Agreement (including the satisfaction, but not waiver, of the ~~Company~~Closing conditions set forth in Article 7). Each of the parties hereto shall use its best efforts to obtain consents of all Governmental Authorities necessary to consummate the transactions contemplated by this Agreement. In connection with, and without limiting the foregoing, the Seller and the Purchaser shall (i) file as promptly as practicable (and in any event within ten (10) Business Days of the execution of this Agreement) with the U.S. Federal Trade Commission (“FTC”) and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) the notification and report form required under the HSR Act (the “HSR Filings”) with respect to the transaction contemplated by this Agreement, and (ii) make, as promptly as practicable, all notifications and other filings required under any other applicable Merger Control Law (together with the HSR Filings, the “Antitrust Filings”). The Antitrust Filings shall be in substantial compliance with the requirements of applicable Law. The Purchaser shall pay all filing fees required in connection with all Antitrust Filings. (b) The Seller and the Purchaser will promptly inform the other party upon receipt of any communication from the FTC, the Antitrust Division or any other Governmental Authority regarding the transaction. If the Seller or the Purchaser (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Authority that is related to the transaction, then such party will endeavor in good faith to make, or cause to be made, ~~all filings required to be made by the Company necessary, proper or advisable under applicable laws~~ as soon as reasonably practicable and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts after consultation with the ~~Company required~~ other party, an appropriate response to ~~be obtained by~~ such request. The Seller and the ~~Company~~Purchaser agree not to participate, ~~and (ii) defend against and respond~~ or to ~~any action, suit, proceeding~~ permit their Affiliates or ~~investigation against the Company relating~~ representatives to ~~the transactions contemplated by this Agreement~~participate, in ~~each case as are necessary for consummation of~~ any substantive meeting or discussion with any Governmental Authority in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate duly represented by its external counsel. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to ~~fulfill~~ make or enter into with the ~~conditions~~ FTC, the ~~Company is required~~ Antitrust Division or any other Governmental Authority in connection with the transaction. In furtherance and not in limitation of the foregoing, each party will, unless the parties otherwise agree, use all best efforts to ~~fulfill~~ resolve any objections that may be asserted with respect to the transaction under any Merger Control Law. (c) Notwithstanding anything in this Agreement to the contrary, with respect to the matters covered in this Section 6.4, it is agreed that the Purchaser shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances; provided, however, that the Purchaser shall consult in advance with the Seller and in good faith take the Seller’s views into account regarding the overall strategic direction of obtaining antitrust or competition clearance and consult with the Seller prior to taking any material substantive position in any written position, or, to the extent practicable, discussions with any Governmental Authority. The Seller shall not make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Authority with respect to any substantive proposed settlement, consent decree, commitment or remedy, except as specifically requested by or agreed with the Purchaser. (d) To the extent necessary in order to obtain the requisite Authorizations of Governmental Authorities, the Purchaser shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture, assignment or disposition of such assets or businesses of the Purchaser and its Affiliates, or effective as of the Closing Date, the Target Companies, or otherwise offer to take or offer to commit to take any action which it is lawfully capable of taking and if the offer is accepted, take or commit to take such action, in each case, as may be required in order to avoid the commencement of any Action by any Governmental Authority to prohibit the transactions contemplated by this Agreement on the basis of the Merger Control Laws, or if already commenced, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order issued or imposed on the basis of the Merger Control Laws so as to enable the Closing to occur as soon as reasonably possible, and in any event, not later than the End Date. The Purchaser shall not, and shall not permit any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, consolidation or investment would reasonably be expected to (A) impose any delay in the obtaining of, or increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or Order of any Governmental Authority necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (B) increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated hereby or (C) materially delay the consummation of the transactions contemplated hereby. (be) ~~Each~~ In addition, neither the Purchaser nor the Seller shall ~~cooperate and use commercially reasonable efforts to take,~~ extend any waiting period under any applicable Merger Control Laws or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations enter into any agreement with any Governmental Authority not to consummate the transaction, except with the prior written consent of the other parties hereto (which shall not be unreasonably withheld, conditioned or delayed). The Purchaser and ~~make effective~~ the Seller shall also refrain from taking, directly or indirectly, any action which would impair or frustrate any party’s ability to consummate the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Equity Purchase Agreement (Westlake Chemical Corp)

Efforts. (a) ~~The Company shall~~ Subject to the terms and conditions of this Agreement, each of Seller and Purchaser will, and will cause their Guarantors and the subsidiaries of their respective Guarantors to, cooperate with each other and use their respective commercially reasonable efforts to take, or cause to be taken, all appropriate action required of the Company, and to make, or cause to be made, all filings required to be made by the Company necessary, proper or advisable under applicable laws and regulations to consummate ~~and make effective~~ the transactions contemplated by this ~~Agreement~~Agreement prior to the Outside Date, ~~including~~including using commercially reasonable efforts to: (i) transfer or assign to, ~~without limitation~~or have issued or reissued in the name of, Purchaser all Transferred Permits; provided, that if the transfer or assignment, issuance or reissuance of such Transferred Permits cannot be completed until after the Closing Date or is not required to be completed until after the Closing Date pursuant to applicable Law, Purchaser and Seller shall continue to take commercially reasonable efforts to ~~(i) obtain~~complete the transfer, ~~prior to~~ assignment, issuance or reissuance of such Transferred Permits after the Closing Date, ; (ii) obtain all ~~licenses, permits~~actions or non-actions, consents, approvals, registrations, waivers, permits, authorizations, ~~qualifications and orders~~ orders, expirations or terminations of ~~governmental authorities and parties to contracts with the Company required to be obtained by the Company~~waiting periods, and ~~(ii) defend against and respond to~~ other confirmations from any ~~action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are~~ Governmental Authority necessary for the consummation of the transactions contemplated by this Agreement (each a “Consent”); (iii) prepare and ~~to fulfill~~ make, as promptly as reasonably practicable, all registrations, filings, forms, notices, petitions, statements, submissions of information, applications and other documents with any Governmental Authorities necessary for the ~~conditions the Company is required to fulfill with respect to~~ consummation of the transactions contemplated ~~hereby.~~ by this Agreement; (biv) ~~Each Purchaser shall cooperate~~ supply as promptly as reasonably practicable any additional information and ~~use commercially reasonable efforts~~ documentary material that may be requested in connection with any Consent or any Antitrust Law (including pursuant to ~~take~~a “second request,” civil investigative demand or similar request pursuant to the HSR Act or any other Antitrust Law); and (v) defend, contest and resist any lawsuits or ~~cause to be taken~~other Proceedings, ~~all appropriate action required of each such Purchaser~~whether judicial or administrative, ~~and to make,~~ challenging this Agreement or ~~cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ the transactions contemplated by this Agreement, ~~including~~including through pursuing litigation on the merits, ~~without limitation~~seeking to have promptly vacated, ~~commercially reasonable efforts to (i) obtain~~lifted, ~~prior to~~ reversed or overturned any Order, whether temporary, preliminary or permanent, that would delay, impede, prohibit or make unlawful the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement prior to the Outside Date, and pursuing avenues of administrative and judicial appeals thereof. Each of the Parties shall, and, as applicable, shall cause its Affiliates to, in consultation and cooperation with the other Party and as promptly as reasonably practicable (but in no event later than twenty (20) Business Days following the date of this Agreement, unless a later date is agreed in writing by the Parties), make its respective filings under the HSR Act. Each Party shall not, and shall cause their Guarantors and the subsidiaries of their respective Guarantors not to, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), (A) “pull-and-refile,” pursuant to 16 C.F.R. § 803.12, any filing made under the HSR Act or (B) enter into any timing agreement with any Governmental Authority to delay the consummation of, or not to close before a certain date, any of the transactions contemplated by this Agreement. (b) Purchaser shall have the right to devise, control and direct the strategy and timing for, and make all material decisions relating to (and shall take the lead in all meetings and communications with any Governmental Authority relating to), obtaining any Consent contemplated by this Section 5.1, including defending and resolving any lawsuits or other Proceedings related to any such Consent; provided that Purchaser shall consult with Seller and consider its views in good faith. Each of the Parties shall, and shall cause its Affiliates to, provide to the other Party in advance for its review, consult and cooperate with the other Party with respect to, and consider in good faith the other Party’s comments in connection with, any proposed analyses, appearances, presentations, white papers, advocacy materials, memoranda, briefs, arguments, opinions and proposals made or submitted by, or on behalf of, such Party in connection with any request, inquiry or investigation by any Governmental Authority in connection with Antitrust Laws or any lawsuits or other Proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the Parties agree, and shall cause their Affiliates, (i) to furnish to the other such information and assistance as the other may reasonably request in connection with obtaining any Consent or any lawsuits or other Proceedings under or relating to Antitrust Laws, (ii) to give each other reasonable advance notice of all meetings with any Governmental Authority relating to any Antitrust Laws, (iii) to the extent permitted by such Governmental Authority, give each other an opportunity to participate in each of such meetings, (iv) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Authority relating to any Antitrust Laws, (v) if any Governmental Authority initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other Party of the substance of such communication, (vi) to provide each other with a reasonable advance opportunity to review and comment upon, and to ~~fulfill~~ consider in good faith the ~~conditions~~ other Party’s comments in connection with, all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Authority relating to any Antitrust Laws and (vii) to provide each ~~such~~ other with copies of all substantive written communications to or from any Governmental Authority relating to any Antitrust Laws. Each Party may, as it deems advisable and necessary, reasonably designate material provided to the other Party as “Outside Counsel Only Material,” and also may redact the material as necessary to (A) remove personally sensitive information; (B) remove references concerning valuation; (C) comply with contractual arrangements; (D) address legal privilege or other confidentiality concerns; or (E) comply with applicable Law. (c) Notwithstanding the foregoing, nothing in this Agreement shall require, or be construed to require, Purchaser ~~is required~~ or any of its Affiliates (i) to ~~fulfill~~ agree to or to sell, license, hold separate, divest, dispose of, discontinue, encumber, limit or otherwise take any action (including agreeing to or otherwise implementing any “behavioral remedies”) with respect to Purchaser’s or any of its Affiliates’ ability to own or operate or otherwise conduct the business of (A) any assets, properties, businesses, products or rights of Purchaser or any of its Affiliates or (B) the Purchased Assets, the Facility or the Business or (ii) agree to or otherwise implement any modification or waiver of the terms and conditions of this Agreement or the other Transaction Agreements or the transactions contemplated ~~hereby~~hereby or thereby. (d) Subject to the terms and conditions of this Agreement, each Party agrees to use its commercially reasonable efforts to obtain any other consents, approvals and authorizations from Persons not contemplated by Section 5.1(a) and otherwise not related to Antitrust Laws that may be required in connection with the transactions contemplated by this Agreement. Notwithstanding any other provision of this Agreement to the contrary, but subject to the remaining provisions of this Section 5.1(d), this Agreement shall not constitute an agreement to contribute, convey, assign, transfer or deliver to Purchaser any Purchased Assets or any claim or right or any benefit arising thereunder or resulting therefrom, or the assumption of any Assumed Liabilities, if a contribution, conveyance, assignment, transfer, delivery or assumption thereof, or an agreement to do any of the foregoing, without the consent of Persons not contemplated by Section 5.1(a), would constitute a breach or other contravention of obligations to such Person or be ineffective or a violation of Law. Xxxxxx agrees that in the event that any such consent, approval or authorization is not obtained prior to the Closing, Seller shall after the Closing, cooperate with Purchaser in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable. If any consent, approval or authorization that cannot be obtained relates to a Purchased Contract, Seller shall, and shall cause its Affiliates to, hold the Purchased Contract in trust for Purchaser and provide Purchaser with the rights and benefits of such Purchased Contract for the term of such Purchased Contract, and, to the extent Seller provides such rights and benefits, Purchaser shall assume all obligations and burdens thereunder. For so long as Seller is holding such Purchased Contract in trust for Purchaser, Seller shall act only in accordance with the directions of Purchaser with respect to such Purchased Contract, and Seller shall indemnify and hold harmless Purchaser for any and all Losses arising out of any Third Party Claim resulting from any breach or alleged breach of any such Purchased Contract listed on Schedule I Part B as a result of the transactions contemplated by this Agreement, including the arrangements contemplated in this Section 5.1(d). Notwithstanding the foregoing, any such Contract shall be contributed, conveyed, assigned, transferred and delivered to or assumed by Purchaser at such time in the future as the requisite Third Party consent is obtained (or no longer required). (e) Purchaser agrees that, between the date of this Agreement and the earlier of the Closing and the date that this Agreement is terminated in accordance with Article VII, it shall not, and shall ensure that none of Purchaser's Guarantor or any of its subsidiaries shall, consummate or enter into any agreement providing for, any investment or acquisition that would reasonably be expected to materially delay or prevent the satisfaction of any of the closing conditions set forth in Article VI or the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (CF Industries Holdings, Inc.)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions of this Agreement, each of the parties hereto (except the Equityholders’ Representative) shall ~~cooperate and~~ use their commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company necessary, proper or advisable~~ things necessary under ~~applicable laws and regulations~~ Applicable Laws to consummate ~~and make effective~~ the transactions contemplated by this Agreement, ~~including~~including (and the Company shall not without Parent’s prior written consent) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, ~~without limitation~~notices, ~~commercially reasonable efforts to (i) obtain~~petitions, ~~prior to the Closing Date~~statements, registrations, submissions of information, applications and other documents and obtaining and maintaining all ~~licenses~~approvals, consents, registrations, permits, ~~consents, approvals, authorizations, qualifications~~ authorizations and ~~orders of governmental authorities and parties to contracts with the Company~~ other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement ; provided that the ~~Company~~parties hereto understand and agree that the commercially reasonable efforts of Parent or Company shall not be deemed to include (i) entering into any settlement, ~~and~~ undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby or (ii) ~~defend against and respond~~ divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any ~~action, suit, proceeding~~ of its or ~~investigation against~~ the Company ~~relating~~ Group’s or any of their respective Affiliates’ businesses, assets or properties. If required by the HSR Act and if the appropriate filing pursuant to the HSR Act has not been filed prior to the date hereof, each party agrees to make an appropriate filing pursuant to the HSR Act with respect to the transactions contemplated by this ~~Agreement~~Agreement within 10 Business Days after the date hereof and to supply as promptly as practicable to the appropriate Governmental Authority any additional information and documentary material that may be requested pursuant to the HSR Act. All filing fees associated with any governmental approval, filing or waiting period, in each ~~case as are necessary for consummation~~ case, under the HSR Act required in connection with the execution, delivery or performance of this Agreement or any other Transaction Document shall be split equally between the Company and Parent. (b) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between the Company and Governmental Authorities in the ordinary course of business, any disclosure which is not permitted by law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact. Notwithstanding the foregoing or anything in this Agreement to the contrary, Parent shall, (i) direct and control all aspects of the parties’ efforts to ~~fulfill the conditions the Company is required to fulfill~~ gain regulatory clearance before any Governmental Authority with respect to the transactions contemplated hereby~~. (b) Each Purchaser shall cooperate and use commercially reasonable efforts~~ , including any timing agreements, understandings or commitments entered into with or made to ~~take~~any Governmental Authority, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against~~ take the lead in communicating with regulators and ~~respond~~ control the overall development of the positions to be taken and the regulatory actions to be requested in any ~~action, suit, proceeding~~ filing or ~~investigation against each such Purchaser relating to~~ submission with a Governmental Authority in connection with the transactions contemplated hereby and in connection with any investigation or other inquiry or litigation by ~~this Agreement~~or before, ~~in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ or any negotiations with, a Governmental Authority with respect ~~to the transactions contemplated hereby~~thereto.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Signify Health, Inc.)

Efforts. (a) ~~The Company~~ Each of the Company, Parent and Merger Sub shall ~~cooperate and~~ use ~~commercially~~ its respective reasonable best efforts to (i) take, or cause to be taken, all appropriate action ~~required of the Company,~~ and ~~to make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law or otherwise to consummate and make effective the Merger, the Offer and the other transactions contemplated by this Agreement as promptly as practicable; (ii) take all such actions (if any) as may be required to cause the expiration of the notice periods under Competition Laws with respect to such transactions as promptly as practicable after the execution of this Agreement; (iii) (I) obtain as promptly as practicable (A) from any Governmental Entity any and all consents, notices, licenses, permits, waivers, approvals, authorizations, orders, registrations, rulings and clearances required to be obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event not later than three Business Days prior to the Outside Date, and to avoid any action or proceeding by any Governmental Entity or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and the Offer, and (B) from any Third Party any and all consents, notices, licenses, permits, waivers, approvals, authorizations and registrations that are required to be obtained or made by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement, ~~including~~and in the case of this clause (B), ~~without limitation, commercially reasonable efforts to (i) obtain, prior~~ such consents and notices set forth in Annex C and such other consents and notices to the ~~Closing Date~~extent that Parent, Merger Sub and the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made; and (II) prepare and file as promptly as practicable all ~~licenses~~documentation to effect all necessary applications, ~~permits~~notices, petitions, filings, ruling requests, and other documents necessary to obtain the consents, ~~approvals, authorizations, qualifications~~ approvals and ~~orders of governmental authorities~~ other deliverables set forth in clauses (A) and ~~parties to contracts with the Company required to be obtained by the Company~~(B) above, and take all reasonable steps as may be necessary to obtain all such consents, approvals and other deliverables; (iiiv) cause the satisfaction of all conditions to the Offer set forth in Annex A and cause the satisfaction of all conditions to the Merger set forth in Article 7, in each case, within its control; (v) defend ~~against~~ and ~~respond~~ seek to ~~any action~~prevent the initiation of all actions, ~~suit~~lawsuits or other legal, ~~proceeding~~ regulatory or ~~investigation against~~ other Proceedings to which it is a party challenging or affecting this Agreement or the ~~Company relating to~~ consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, nonappealable Order; (vi) seek to have lifted or rescinded any injunction or restraining order that may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, nonappealable Order; and (vii) as ~~are~~ promptly as reasonably practicable after the date hereof, make all necessary ~~for~~ filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement, the Merger and the Offer required under any other applicable Law, provided that all filing fees related to the filings by the Parties under any Competition Laws shall borne by Parent. Notwithstanding anything to the contrary herein, the Company shall not be required prior to the Effective Time to pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration (including increased rent or other similar payments or 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) or otherwise incur or assume or agree to incur or assume any liability that is not conditioned upon the consummation of the Merger, to obtain any consent, waiver or approval of any Person (including any Governmental Entity) under any Contract. Each Party shall file no later than 20 Business Days after the date of this Agreement the notification and report forms required under the HSR Act, unless the Parties mutually agree in writing that a filing is not necessary. (b) Each of Parent and the Company agrees that, between the date of this Agreement and the Effective Time, each of Parent the Company shall not (and the Company shall cause the Company Subsidiaries not to) (i) enter into or consummate any agreements or arrangements for an acquisition (via stock purchase, merger, consolidation, purchase of assets or otherwise) of any ownership interest in, or assets of, any Person, if such ownership interest or assets would reasonably be expected to result in any delay in obtaining, or the failure to obtain, any regulatory approvals required in connection with the transactions contemplated hereby (including the Merger and the Offer), or (ii) take or agree to take any other action (including entering into agreements with respect to any equity investments, joint ventures, acquisitions, mergers, consolidations or business combinations) which would reasonably be expected to result in any delay in obtaining, or which would reasonably be expected to result in the failure to obtain, any approvals of any Governmental Entity required in connection with the transactions contemplated hereby (including the Merger and the Offer), or which would otherwise reasonably be expected to prevent or delay the Merger or the Offer. (c) Without limiting the generality of anything contained in this Section 6.4, each party hereto shall (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to the Merger, the Offer or any of the other transactions contemplated by this Agreement, (ii) keep the other parties notified as to the status of any such request, inquiry, investigation, action or other Proceeding, (iii) promptly notify the other parties of any oral or written communication to or from any Governmental Entity regarding the Merger, the Offer or any of the other transactions contemplated by this Agreement and (iv) promptly provide to ~~fulfill~~ the ~~conditions the Company is required~~ other parties copies of any written communications received or provided by such party, or any of its Subsidiaries, from or to ~~fulfill~~ any Governmental Entity with respect to the Merger, the Offer or any other transactions contemplated by this Agreement; provided that Parent and the Company may, as each reasonably and in good xxxxx xxxxx advisable and necessary, designate any competitively sensitive material provided to the other under this Section 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. Each party hereto will consult and cooperate with the other parties with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to all notices, submissions, or filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement or any transactions contemplated by this Agreement and will permit the other parties to review and discuss in advance and consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger, the Offer or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or other Proceeding other than the matters contemplated by Section 6.11, in connection with or related to the Merger, the Offer or the other transactions contemplated hereby, each party hereto will consult with the other parties in advance and give the other parties or their authorized representatives the opportunity to be present at each meeting or teleconference relating to such request, inquiry, investigation, action or other Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other Proceeding. Each of the Company and Parent shall approve the content of any presentations, white papers or other written materials to be submitted to any Governmental Entity in advance of any such submission. (bd) ~~Each Purchaser~~ Notwithstanding anything to the contrary in this Agreement, none of the Company, Parent or Merger Sub or any of their respective Subsidiaries shall ~~cooperate~~ be required to, and ~~use commercially reasonable efforts~~ each of them may not and may not permit any of their respective Subsidiaries to, without the prior written consent of the other Party, become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order regarding (i) the sale, divestiture, transfer, license or other disposition of any assets or businesses of the Parties or any of their respective affiliates or Subsidiaries (or interests held by the Parties or any of their affiliates or Subsidiaries); (ii) conduct, ownership and operational limitations on, including actions and agreements that would limit the freedom of action with respect to, or the ability to own or operate, any assets or businesses of the Parties or any of their respective affiliates or Subsidiaries (or interests held by the Parties or any of their affiliates or Subsidiaries); (iii) the creation, termination, modification, transfer or other action with respect to any relationships, agreements and contractual rights and obligations of the Parties or any of their Subsidiaries; or (iv) any other action that limits or affects the Parties’ or their affiliates’ or Subsidiaries’ freedom of action. For the avoidance of doubt, notwithstanding anything in this Section 6.4 to the contrary, nothing in this Section 6.4 shall require any Party or any of their respective Subsidiaries to take, or cause to be taken, ~~all appropriate~~ any action ~~required of each such Purchaser~~with respect to their respective assets, businesses or Subsidiaries that is not conditioned upon the Merger. Parent, Merger Sub, and ~~to make,~~ the Company shall comply promptly with any request for additional information and documentary material issued by the United States Federal Trade Commission or ~~cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ the ~~transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to~~ Antitrust Division of the ~~Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ United States Department of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser Justice relating to the transactions contemplated by ~~this Agreement, in each case as are necessary for consummation of~~ the ~~transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect~~ Transaction Documents (so-called “Second Request”) prior to the ~~transactions contemplated hereby~~Outside Date.

Appears in 1 contract

Samples: Merger Agreement (Trecora Resources)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall ~~cooperate and~~ use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Laws or otherwise to consummate and make effective the Transactions as promptly as practicable, including (i) the obtaining of all necessary actions or non-actions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authority, including in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the delivery of required notices to, and the obtaining of all necessary consents, approvals or waivers from third parties and (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions; provided, that in no event shall the Company or any of the Company Subsidiaries be required to pay prior to the Closing any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the Transactions under any contract or agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall cooperate with each other in (i) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Authorities (including in any foreign jurisdiction in which the Company or any Company Subsidiary are operating any business) and (ii) to the extent not made prior to the date hereof, timely making or causing to be made all such applications and filings as reasonably determined by Parent and the Company as promptly as practicable, and in any event as of the date hereof with respect to filings or submissions required under the HSR Act. Each party shall supply as promptly as practicable such information, documentation, other material or testimony that may be requested by any Governmental Authority, including by complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act, any other Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice, or any other Governmental Authority in connection with such applications or filings or the Transactions. (c) Without limiting any of its other obligations hereunder, Parent and Merger Sub shall take all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities, or competition authorities of any other nation or other jurisdiction (including multinational or supranational), or any other Person, may assert under any Regulatory Law with respect to the Transactions, and to avoid or eliminate each and every impediment under any Regulatory Law that may be asserted by any Person with respect to the Merger, in each case so as to enable the Merger and the Transactions to occur as soon as possible (and in any event no later than sixty (60) days from the date of this Agreement), including by proposing, negotiating, committing to and effecting, by agreement, consent decree, hold separate order, trust or otherwise, (x) the sale, divestiture or disposition of such assets, businesses, services, products or product lines of Parent or the Company (or any of their respective Subsidiaries or Affiliates) or behavioral limitations, conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Parent or the Company (or any of their respective Subsidiaries or Affiliates), (y) the creation or termination of relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or Affiliates and (z) any other actions that would limit the freedom of action of Parent, the Company or any of their respective Subsidiaries or affiliates with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Company’s or the Surviving Corporation’s) or Affiliates’ assets, businesses, services, products or product lines, in each case as may be required in order to obtain all required Governmental Consents as promptly as practicable (including expirations or terminations of waiting periods whether imposed by Law or agreement) and to avoid the entry of, or 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 Merger or the transactions contemplated by this Agreement or delaying any of the foregoing beyond the End Date (each of (x), (y) and (z), a “Divestiture Action”). Neither the Company nor any Company Subsidiaries shall, without Parent’s prior written consent, and neither Parent nor any of its Subsidiaries shall, without the Company’s prior written consent, discuss or commit to any extension of any waiting period under any Regulatory Law or any agreement not to consummate the Merger or any of the Transactions. None of Parent, Merger Sub or the Company shall be required to take any action pursuant to this Section 6.10 unless it is expressly conditioned on the effectiveness of the Merger. (d) Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Authority, each of the Company and Parent agrees (i) to cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other material actions pursuant to this Section 6.10, (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therein, including promptly furnishing the other with copies of notices or other communications received by such party from, or given by such party to, any third party and/or any Governmental Authority with respect to the Transactions, (iv) to permit the other party to review and to incorporate the other party’s reasonable comments in any communication to be given by it to any Governmental Authority with respect to obtaining the necessary approvals for the Transactions and (v) not to participate in any meeting or discussion in person or by telephone expected to address substantive matters related to the transactions contemplated herein with any Governmental Authority in connection with the Transactions unless, to the extent not prohibited by such Governmental Authority, it gives the other party reasonable notice thereof and the opportunity to attend and observe. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 6.10 in a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.10.(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) For purposes of this Agreement, “Regulatory Law” means the Xxxxxxx Act, the Xxxxxxx Act, the HSR Act, the Federal Trade Commission Act, the EC Merger Regulation, and all other applicable federal, state, foreign, multinational or supranational statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including, without limitation, ~~commercially reasonable efforts~~ any applicable antitrust, competition or trade regulation Laws, that are designed or intended to ~~(i) obtain~~prohibit, ~~prior~~ restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition and including any Laws that relate to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated herebyforeign investments. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (Cdi Corp)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, each of the parties to this Agreement shall (and shall cause each of their Affiliates to) use its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all consents, approvals or waivers from third parties required to be obtained in connection with the Mergers, including the obtaining by the Company of all necessary consents of the lenders party to the Credit Agreement to the consummation of the Mergers and the other transactions contemplated by this Agreement; and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall ~~cooperate~~ Parent, Company, or any of their respective Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract (with the exception of any filing fee, or similar, payable to any Governmental Entities with respect to the Specified Approvals or Parent Approvals). (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties shall (and shall cause their Affiliates to) (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all required notification and report forms under the HSR Act, and file as promptly as practicable any other required filings and/or notifications under other applicable Antitrust Laws or Foreign Investment Laws listed in Section 4.3(b) of the Company Disclosure Letter and Section 5.3(b) of the Parent Disclosure Letter, with respect to the Mergers and the other transactions contemplated by this Agreement, and use ~~commercially~~ their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act or any other Antitrust Law or Foreign Investment Laws; (ii) use their reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law; and (iv) use their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated by this Agreement. Company and Parent shall not (and shall cause their Subsidiaries and Affiliates not to) agree to stay, ~~including~~toll or extend any applicable waiting period under any Antitrust Law, enter into or extend a timing agreement with any Governmental Entity or withdraw or refile any filing under the HSR Act or any other Antitrust Law or Foreign Investment Law, without ~~limitation~~the prior written consent of the other party. (c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or Foreign Investment Law or if any Action is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law or Foreign Investment Law, ~~commercially reasonable efforts to~~ each of Parent and Company shall (and shall cause each of their Affiliates to) (i) ~~obtain~~oppose or defend against any action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), and/or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), including by defending any Action brought by any Governmental Entity in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal up to a final non-appealable order if necessary, in order to resolve any such objections or challenge as such Governmental Entity or private party may have to such transactions under such Antitrust Law or Foreign Investment Law so as to permit consummation of the transactions contemplated by this Agreement. (d) Without limiting the foregoing, Xxxxxx agrees to (and shall cause its Affiliates to) use its reasonable best efforts, and agrees to take (and shall cause its Affiliates to take), any and all actions to avoid and, if necessary, eliminate, each and every impediment under any Antitrust Laws or Foreign Investment Laws that may be asserted by any person, so as to enable the Closing to occur no later than the End Date, including but not limited to proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise: (i) the sale, divestiture or disposition of, any assets, products, businesses or interests of the parties (or their respective Affiliates); (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, products, businesses or interests; (iii) any modification or waiver of the terms and conditions of this Agreement; or (iv) take any other action that limits the freedom of action with respect to, or the ability to retain, any assets, products, businesses or interests of Parent or any of its Affiliates in order to avoid the entry of or to effect the dissolution of any order or Action (whether temporary, preliminary or permanent), or that would otherwise have the effect of preventing or delaying the consummation of the Mergers and the other transactions contemplated by this Agreement; provided, however, that nothing in this Agreement shall require Parent or Parent’s Subsidiaries to propose, execute, carry out, or agree or submit to any action or remedy that individually or in the aggregate would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of (x) Parent and Parent’s Subsidiaries (taken as a whole prior to the ~~Closing Date~~Closing) or (y) the Company and the Company’s Subsidiaries (taken as a whole). (e) Without limiting the foregoing, ~~all licenses~~Parent and Company shall not, ~~permits~~and shall cause their Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, or take or cause to take any action, if doing so would reasonably be expected to: (i) impose any material delay in the obtaining of, or increase the risk of not obtaining, consents, approvals, ~~authorizations~~authorizations or waivers of Governmental Entities necessary, ~~qualifications~~ proper or advisable to consummate the transactions contemplated by this Agreement and ~~orders of governmental authorities and parties to contracts with~~ secure the ~~Company required to be obtained by the Company, and~~ Specified Approvals or Parent Approvals; (ii) ~~defend against~~ materially delay the consummation of the transactions contemplated by this Agreement; (iii) materially increase the risk of any Governmental Entities entering a judgment prohibiting the consummation of the transactions contemplated by this Agreement; (iv) materially increase the risk of not being able to remove any such judgment on appeal or otherwise; or (v) otherwise materially impair or delay the ability of any Parent Party to perform its material obligations under this Agreement. (f) The parties shall (and ~~respond~~ shall cause their Affiliates to) cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 6.10; and, subject to applicable legal limitations and the instructions of any ~~action~~Governmental Entity, ~~suit~~Company, ~~proceeding or investigation against~~ on the ~~Company~~ one hand, and Parent, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies (or, in the case of oral communications, summaries) of notices or other material communications received by Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Company, on the one hand, and Parent, on the other hand, shall to the extent practicable permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any substantive written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of Company and its Subsidiaries, or proposals from third parties with respect thereto; (y) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and its operations; and (z) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Company and its operations. Each of the parties agrees not to (and to cause each ~~case as are necessary for consummation~~ of their Affiliates not to) participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement ~~and to fulfill~~ unless it consults with the ~~conditions the Company is required to fulfill with respect~~ other parties in advance and, to the ~~transactions contemplated hereby~~extent not prohibited or required otherwise by such Governmental Entity, gives the other party or if advisable the other party’s outside counsel the opportunity to attend and participate. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby.

Appears in 1 contract

Samples: Merger Agreement (Dril-Quip Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the Parties shall use all commercially reasonable efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Vowel Specified Approvals and the Consonant Specified Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authority, (ii) obtaining all necessary consents, approvals or waivers from third parties, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that, except as otherwise expressly provided in this Agreement, in no event shall Vowel or any of its Subsidiaries, or Consonant or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement in excess of $500,000. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Parties shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the Parties), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use commercially reasonable efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use commercially reasonable efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking to obtain all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Authorities as reasonably promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Authority; and (iv) take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated ~~by this Agreement~~hereby, ~~including~~including taking all such further action as may be necessary promptly to resolve such objections, ~~without limitation~~if any, ~~commercially reasonable efforts to (i) obtain~~as the United States Federal Trade Commission, ~~prior to~~ the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation Antitrust Division of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill~~ United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Outside Date); provided, however, that nothing contained in this Agreement shall be deemed to require any Party or any Subsidiary or Affiliate thereof to agree to any Action of Divesture. (bc) Subject to applicable legal limitations and the instructions of any Governmental Authority and the Confidentiality Agreements, Vowel and Consonant shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Vowel or Consonant or any of their respective Affiliates, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Authority with respect to such transactions. Vowel and Consonant shall permit counsel for the 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. Each ~~Purchaser~~ of Vowel and Consonant agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by a Governmental Authority, gives the other party the opportunity to attend and participate. (d) In furtherance and not in limitation of the covenants of the Parties contained in Section 5.5(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Vowel and Consonant shall cooperate in all respects with each other and shall use their respective commercially reasonable efforts to ~~take, or cause to be taken, all appropriate action required of each~~ contest and resist any such ~~Purchaser,~~ Proceeding and to ~~make~~have vacated, lifted, reversed or ~~cause to be made~~overturned any decree, ~~all filings required to be made by each such Purchaser necessary~~judgment, ~~proper~~ injunction or ~~advisable under applicable laws~~ other order, whether temporary, preliminary or permanent, that is in effect and ~~regulations to consummate~~ that prohibits, prevents or restricts consummation of the Mergers and ~~make effective~~ the other transactions contemplated by this Agreement. (e) Notwithstanding the provisions of Sections 5.5(a)-(d), ~~including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ to the ~~Closing Date~~extent that a Party or its Affiliates has confidential information contained in any filing with or correspondence to a Governmental Authority, ~~all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each~~ such ~~Purchaser~~ Party shall not be required to ~~be obtained~~ share such portion of such filing or correspondence with the other Party. A Party may request entry into a joint defense agreement as a condition to providing any materials to another Party in connection with the matters covered by ~~each such Purchaser~~ Sections 5.5(a)-(d) and, upon receipt of that request, the Parties shall work in good faith to enter into a joint defense agreement to create and ~~(ii) defend against~~ preserve attorney-client privilege in a form and ~~respond to any action, suit, proceeding or investigation against each such Purchaser relating~~ in substance mutually acceptable to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyParties.

Appears in 1 contract

Samples: Merger Agreement (Voyager Learning CO)

Efforts. (a) As promptly as practicable after the date hereof, but in any event no later than ten (10) Business Days hereafter, Seller, Buyer and their respective Affiliates, as applicable, shall file and Seller shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune to file, the necessary applications requesting the FCC Consent to the Assignment of the Station Licenses and all other assignable Governmental Authorizations issued by the FCC exclusively related to the Stations to Buyer, as contemplated by this Agreement (the “FCC Applications”). Seller shall, and shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune to, and Buyer shall, or shall cause its Affiliates to, cooperate in the preparation of such applications and will diligently take, or cooperate in the taking of, all necessary, desirable and proper steps, provide any additional information required by the FCC and shall use reasonable best efforts to obtain promptly the FCC Consent; provided, however, that the parties hereto acknowledge and agree that Seller and Tribune and their respective Affiliates may take various actions related to obtaining necessary approvals for the Merger and to consummate the Merger, including amending the FCC Applications (which may affect the timing of FCC action with respect to the FCC Applications), and such actions shall not be deemed a violation of this obligation. Seller, on the one hand, and Buyer, on the other hand, shall bear the cost of FCC filing fees relating to the FCC Applications equally. Buyer and Seller shall (including, in the case of Seller, by using reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune to) oppose any petitions to deny or other objections filed with respect to the FCC Applications to the extent such petition or objection relates to any such party. Neither Seller nor Buyer shall, and each shall cause its Affiliates not to, (and, in the case of Seller, shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Affiliates not to take any intentional action that would, or intentionally fail to take such action the failure of which to take would, reasonably be expected to have the effect of materially delaying the receipt of the FCC Consent; provided, however, that the parties hereto acknowledge and agree that the Seller Parties and their Affiliates may take various actions related to obtaining necessary approvals for the Merger and to consummate the Merger, including amending the FCC Applications (which may affect the timing of FCC action with respect to the FCC Applications), and such actions shall not be deemed a violation of this obligation. The ~~Company~~ parties agree that they will cooperate to amend the FCC Applications as may be necessary or required to obtain the timely grant of the FCC Consent. As may reasonably be necessary to facilitate the grant of the FCC Consent, in the event that in order to obtain the FCC Consent in an expeditious manner, it is necessary for Buyer or any of its Affiliates to enter into a customary assignment, assumption, tolling, or other similar arrangement with the FCC to resolve any complaints with the FCC relating to the Stations, Buyer shall ~~cooperate~~ enter, or cause its Affiliates, as applicable, to enter, into such a customary assignment, assumption, tolling or other arrangement with the FCC. (b) As promptly as practicable after the date hereof, but in any event no later than ten (10) Business Days thereafter, to the extent required by applicable Laws, Seller and Buyer shall file (and in the case of Seller, shall use ~~commercially~~ its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Affiliates to file), and shall cause their respective Affiliates to file (if necessary), with the FTC and the Antitrust Division of the DOJ any notifications and other information required to be filed with such commission or department under the HSR Act, or any rules and regulations promulgated thereunder, with respect to the transactions contemplated by this Agreement, and shall request early termination of the waiting period thereunder. Each of Seller and Buyer shall file (and in the case of Seller, shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Affiliates to file), and shall cause their respective Affiliates to file, as promptly as practicable such additional information as may be requested to be filed by such commission or department. Buyer shall bear 100% of the cost of any filing fees payable under the HSR Act in connection with the notifications and information described in this Section 5.2(b). (c) Subject to the terms and conditions herein, Seller shall (including by cooperating with Buyer in connection with any actions Buyer is required to take pursuant to Section 5.2(d)), and shall use its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune to, and Buyer shall, use reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law to consummate and make effective the transactions contemplated hereby and to cause the conditions set forth in Article VII to be satisfied as promptly as reasonably practicable after the date hereof, including by ~~this Agreement, including, without limitation, commercially~~ using reasonable best efforts to (i) ~~obtain~~in the case of Buyer, ~~prior to the Closing Date~~obtain and maintain all necessary, ~~all licenses, permits,~~ proper or advisable consents, approvals, ~~authorizations~~waivers and authorizations of, ~~qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company~~actions or nonactions by, and ~~(ii) defend against~~ making of all required filings, in consultation with Seller, of all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and ~~respond to~~ other documents with any ~~action, suit, proceeding or investigation against the Company relating to~~ Governmental Authority required in connection with the transactions contemplated by this ~~Agreement~~Agreement and (ii) cooperate with each other in (A) determining which filings are necessary, proper or advisable to be made prior to the Closing with, and which consents, approvals, permits, notices or authorizations are required to be obtained prior to the Closing from, Governmental Authorities or Third Parties in connection with the execution and delivery of this Agreement and related agreements, and consummation of the transactions contemplated hereby and thereby and (B) timely make all necessary filings and timely seeking all consents, approvals, permits, notices or authorizations; provided, however, that the parties hereto acknowledge and agree that Seller or Tribune may take such actions as are reasonably necessary or advisable in connection with obtaining all necessary approvals for the Merger and to consummate the Merger, including amending the FCC Applications (which may affect the matters referred to in clause (ii) above), and such actions shall not be deemed a violation of this obligation (d) In furtherance of and without limiting the generality of the foregoing, Buyer shall, and shall cause its Affiliates to, (i)(x) obtain the DOJ Consent and approval of the transactions by the DOJ or the FTC as required under the HSR Act and the DOJ Final Judgment and (y) take promptly any and all reasonable steps to avoid or eliminate each and every impediment and obtain all consents under any Competition Laws or any communications or broadcast Laws (including the Communications Act) that may be required by any U.S. federal, state or local antitrust, competition or communications or broadcast Governmental Authority, or by the FCC or similar Governmental Authority, in each case with competent jurisdiction or by the DOJ Final Judgment, so as ~~are necessary for~~ to enable the parties to close the transactions contemplated by this Agreement as promptly as practicable, (ii) vigorously contest (including by means of litigation) (x) any actions, arbitrations, litigations, suits or other civil or criminal proceedings brought, or threatened to be brought, by any Governmental Authority or any other Person seeking to enjoin, restrain, prevent, prohibit or make illegal the consummation of any of the transactions contemplated hereby or seeking damages or to impose any terms or conditions in connection with the transactions contemplated hereby, and (y) any Order that enjoins, restrains, prevents, prohibits or makes illegal the consummation of any of the transactions contemplated hereby or imposes any damages, terms or conditions in connection with the transactions contemplated hereby and (iii) resolve any objections any Governmental Authority may assert under any applicable Law with respect to the transactions contemplated by this Agreement and to ~~fulfill~~ obtain any clearance required under the ~~conditions~~ HSR Act, any DOJ Final Judgment or the ~~Company is~~ Communications Act or resolve any objection by any other Third Party relating to the obtaining of any consent, approval, waiver or authorization required ~~to fulfill~~ from such Third Party in connection with ~~respect to~~ the transactions contemplated ~~hereby~~by this Agreement (including agreeing to and making divestitures, entering into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations). Further, and for the avoidance of doubt, Buyer shall, and shall cause its affiliates to, take any and all actions reasonably necessary in order to seek to ensure that (x) no requirement for any non-action, consent or approval of the FTC, the DOJ, any authority enforcing applicable Competition Laws or any communications or broadcast Laws (including the Communications Act), any state attorney general or other Governmental Authority, (y) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, and (z) no other matter relating to any Competition Laws or any communications or broadcast Laws (including the Communications Act) would preclude consummation of the transactions contemplated by the Agreement by the Termination Date. (be) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective Buyer understands that the transactions contemplated by this Agreement, ~~including~~including the identity of Buyer, ~~without limitation~~are subject to the prior approval of the DOJ and that Seller is entering into this Agreement to obtain DOJ approval for the DOJ Final Judgment in connection with the consummation of the Merger. Buyer, ~~commercially reasonable efforts~~ as promptly as practicable after the date hereof (to the extent Buyer has not already completed the following activities), will (i) ~~obtain~~prepare and furnish all necessary information and documents reasonably requested by the DOJ, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against~~ take all actions reasonably necessary to demonstrate to the DOJ that Buyer is an acceptable purchaser of the Purchased Assets and ~~respond to~~ that Buyer will compete effectively using the Purchased Assets, and (iii) reasonably cooperate with Seller in obtaining all DOJ approvals, including the DOJ Consent and all required DOJ approvals under the Merger Agreement. Each party shall promptly notify the other party of any ~~action, suit, proceeding~~ communication (including oral communications) it or ~~investigation against each such Purchaser~~ any of its Affiliates receives from the DOJ relating to the ~~transactions contemplated~~ matters that are the subject of this Agreement and consult with each other in advance of any proposed communication by the receiving party to the DOJ. Buyer shall take all actions necessary to obtain, and agrees to take all reasonable actions that Seller reasonably requests in order to assist Seller in obtaining, DOJ approvals for Buyer, this Agreement, the Ancillary Agreements and the Merger. Seller and Buyer shall promptly notify each other upon the occurrence (or reasonably impending occurrence) of any of the following events: (i) Buyer is not (or will not be) preliminarily approved by the DOJ or other necessary Governmental Authority as a purchaser of the Purchased Assets hereunder; (ii) the DOJ Staff informs Seller or Buyer that the DOJ Staff will not recommend approval of Buyer as purchaser of the Purchased Assets hereunder; or (iii) the DOJ Staff informs Seller or Buyer that the DOJ Staff will require the transfer to Buyer hereunder of any asset other than the Purchased Assets or that the DOJ Staff will prohibit the transfer to Buyer hereunder of any such Purchased Asset. Each of Buyer and Seller agree to consider in good faith and discuss and reasonably cooperate with each other any changes, amendments, modifications or waivers to this Agreement requested by DOJ. (f) Buyer shall, as promptly as practicable but in no event later than two (2) Business Days following the date hereof, sign the Consent Decree. (g) Seller and Buyer shall, and shall cause their respective Affiliates to (including, in the case as of Seller, by using reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Affiliates to) use their respective reasonable best efforts to obtain all consents and amendments from the parties to the Station Agreements which are ~~necessary~~ required by the terms thereof or this Agreement for the consummation of the transactions contemplated by this ~~Agreement and~~ Agreement; provided, however, that neither Seller, Buyer, Tribune nor any of their respective Affiliates shall have any obligation to ~~fulfill the conditions each~~ offer or pay any consideration in order to obtain any such ~~Purchaser is required to fulfill~~ consents or amendments, including, with respect to Seller, Tribune or any of their respective Affiliates, any obligation to amend, modify or otherwise alter the ~~transactions~~ terms of any Contract with any such party that is not included in the Purchased Assets or, insofar as any Multi-Station Contract relates to Other Stations, the terms thereof relating to Other Stations; and provided, further, that the parties acknowledge and agree that such Third Party consents are not conditions to the Closing, except for certain third party consents applicable to the Stations set forth on Section 5.2(g) of the Buyer Disclosure Schedule (the “Required Consents”). (h) Buyer agrees that, between the date of this Agreement until the Closing, except as contemplated ~~hereby.~~by this Agreement, it shall not, and shall cause its Affiliates not to, directly or indirectly, without the prior written consent of Seller, (i) acquire any rights, assets, business or Person or merging or consolidating with any other Person or enter into any binding share exchange, business combination or similar transaction with another Person, (ii) restructure, reorganize or completely or partially liquidate,

Appears in 1 contract

Samples: Asset Purchase Agreement (Tegna Inc)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, Seller, the Company and Buyer shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Transactions and the other transactions contemplated by the Transaction Documents and the APA, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including any such matters that may be necessary under or in connection with the APA or consummation of the Albertson’s Asset Purchase, the Specified Approvals and the Buyer Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the validity or enforceability of this Agreement or the consummation of the Transactions or the other transactions contemplated by the Transaction Documents and the APA; and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and the Albertson’s Asset Purchase on the terms set forth in the Transaction Documents and the APA; provided that in no event shall Seller, Buyer, the Company or any of the Company’s Subsidiaries be required to pay prior to, at or after the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract other than as may be required in connection with the Refinancing; provided, however, that Seller and Buyer shall each be required to pay at the Effective Time 50% of any fees, penalties or other consideration that Seller, Buyer, the Company or any of the Company’s Subsidiaries is legally required to pay to any third party to obtain such party’s consent to or approval of the Transactions and the Albertson’s Asset Purchase, such payment not to exceed $10,000,000 by each of Seller and Buyer. (b) Subject to the terms and conditions herein and without limiting the foregoing, Seller, the Company and Buyer shall (i) as promptly as practicable (and in any event within ten Business Days after the date hereof) after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Share Purchase and the other transactions contemplated by this Agreement, and use ~~commercially~~ all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use all reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; and (B) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) except as set forth in Section 5.5(b)(iii) of the Seller Disclosure Letter, supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) use reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated ~~by this Agreement~~hereby, ~~including, without limitation, commercially~~ including using reasonable best efforts to ~~(i) obtain~~take all such further action as may be necessary to resolve such objections, ~~prior to~~ if any, as the ~~Closing Date~~United States Federal Trade Commission, ~~all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with~~ the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation Antitrust Division of the ~~transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill~~ United States Department of Justice, state antitrust enforcement authorities or any other person may assert under any Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date); provided, however, that notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement (including, for the avoidance of doubt, this Section 5.5), shall require, or be construed to require Buyer or any of its Affiliates to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, transfer, dispose of or otherwise encumber before or after the Closing, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or any of its Subsidiaries or of Buyer or any of its Affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by the Company or any of its Subsidiaries of any of their respective assets, licenses, operations, rights, product lines, businesses, or interest therein or to any agreement by any such person to take any of the foregoing actions) or to agree to make any material changes (including through a licensing arrangement) or restriction on, or other impairment of Buyer’s or any of its Affiliates’ ability to own or operate, of any such assets, licenses, product lines, businesses or interests therein or Buyer’s or any of its Affiliates’ ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Company or any of its Subsidiaries or of Buyer or any of its Affiliates, in each case that would be reasonably likely to have a material adverse effect on the Company, and neither Seller, the Company nor any of the Company’s Subsidiaries shall take (or agree to take) any such action, to the extent applicable, except with Buyer’s prior written consent. (bc) ~~Each Purchaser~~ Seller, the Company, and Buyer shall cooperate and ~~use commercially reasonable efforts to take~~consult with each other in connection with the making of all registrations, ~~or cause to be taken~~filings, ~~all appropriate action required of each such Purchaser~~notifications, communications, submissions, and any other material actions pursuant to ~~make~~this Section 5.5, ~~or cause~~ and subject to ~~be made~~applicable legal limitations and the instructions of any Governmental Entity, ~~all filings required~~ Seller and the Company, on the one hand, and Buyer, on the other hand, shall keep each other apprised on a current basis of the status of matters relating to ~~be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Seller or the Company, on the one hand, or Buyer, on the other hand, as the case may be, or by any of their respective Subsidiaries or Affiliates, from any third party or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Seller and the Company on the one hand, and Buyer, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted by Seller or the Company (i) to remove proposals from third parties with respect thereto; (ii) as necessary to comply with contractual agreements; and (iii) as necessary to address reasonable privilege or confidentiality concerns. Seller and the Company, on the one hand, and Buyer, on the other hand, agree not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless they consult with the other party in advance and, to the extent not prohibited by such Governmental Entity, give the other party the opportunity to attend and participate. (d) Subject to the proviso in Section 5.5(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by the Transaction Documents or the APA as violative of any Law, Seller and the Company, on the one hand, and Buyer, on the other hand, shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of such transactions. Notwithstanding the foregoing or any other provision of this Agreement, ~~including~~nothing in this Section 5.5 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as such party has, ~~without limitation~~prior to such termination, ~~commercially reasonable efforts to~~ complied with its obligations under this Section 5.5. (ie) ~~obtain~~Without limiting any other obligation under this Agreement, prior to the ~~Closing Date~~Closing, ~~all licenses~~neither Seller nor Buyer and nor their respective Subsidiaries and Affiliates shall, ~~permits~~and shall cause their respective Subsidiaries and Affiliates not to, ~~consents~~take or agree to take any action that would reasonably be expected to prevent or delay the parties from obtaining any Specified Approval, ~~approvals~~Buyer Approval, ~~authorizations~~or other approval, ~~qualifications~~ clearance or waiver from any Governmental Entity in connection with the Transactions, or to prevent or delay the consummation of the Transactions. (f) For purposes of this Agreement, “reasonable best efforts” shall not require (i) Buyer to (A) pay (or agree to pay) more for the Debt Financing (whether in interest rate, fees or otherwise) than the terms set forth in the Debt Commitment Letters and ~~orders of governmental authorities~~ any fee letter entered into by Buyer in connection therewith (including after giving effect to any increase in interest rate, fees or otherwise resulting from any lender flex provisions contained in such fee letter) or, so long as Buyer has complied with Section 5.8, otherwise agree to any alternative financing that is on terms or conditions materially less favorable to Buyer and ~~parties~~ the Company, taken as a whole, than those in the Debt Commitment Letters and any fee letter entered into by Buyer in connection therewith (including after giving effect to ~~contracts with each~~ any increase in interest rate or fees or otherwise resulting from any lender flex provisions contained in such ~~Purchaser required~~ fee letter); (B) seek more capital than is committed in the Equity Commitment Letters; or (C) waive any condition or agree to ~~be obtained by each such Purchaser~~ any changes to the Commitment Letters; and (ii) ~~defend against~~ Seller to (A) pay (or agree to pay) more for the Refinancing (whether in interest rate, fees or otherwise) than the terms set forth in the Refinancing Commitment Letters and ~~respond~~ any fee letter entered into by Seller in connection therewith (including after giving effect to any ~~action~~increase in interest rate, ~~suit~~fees or otherwise resulting from any lender flex provisions contained in such fee letter) or, ~~proceeding~~ so long as Seller has complied with Section 5.9, otherwise agree to any alternative financing that is on terms or ~~investigation against~~ conditions materially less favorable to Seller and its Non-Company Subsidiaries, taken as a whole, (and until after the Closing, the Company and its Subsidiaries, taken as a whole) to those in the Refinancing Commitment Letters and any fee letter entered into by Seller in connection therewith (including after giving effect to any increase in interest rate or fees or otherwise resulting from any lender flex provisions contained in such fee letter); (B) waive any condition or agree to any changes to the Refinancing Commitment Letters; or (C) consummate the Refinancing if after doing so Seller would be in default under the Definitive Refinancing Agreements (without prejudice to any rights of Buyer pursuant to Section 7.1(h)). (g) The Parties shall negotiate the forms, terms and conditions of the agreements described in the term sheet set forth in the Section 5.5(g) of the Seller Disclosure Letter (the “Lancaster/MRDC Agreements”), on the basis of such term sheet, in good faith, with each such ~~Purchaser relating~~ Lancaster Agreement to incorporate usual and customary provisions for similar agreements in similar circumstances. If a definitive Lancaster/MRDC Agreement cannot be finalized by Closing, the Closing shall nevertheless occur (subject to the ~~transactions contemplated by this Agreement, in each case as are necessary for consummation~~ satisfaction or waiver of the ~~transactions contemplated by this~~ other conditions contained herein). During the period following the Closing Date until such Lancaster/MRDC Agreement is executed, the parties shall, and ~~to fulfill~~ shall cause their respective Affiliates to, operate the ~~conditions each such Purchaser is required to fulfill~~ business with respect to the ~~transactions contemplated hereby~~subject matter of such Lancaster/MRDC Agreement on the terms and conditions set forth in the term sheet attached to this Agreement. The term sheet shall govern the parties’ rights and obligations with respect to such subject matter until the respective Lancaster/MRDC Agreement has been executed. (h) The Parties shall work together in good faith to make commercially reasonable transition/supply arrangements in respect of the matters set forth in Section 5.5(h) of the Seller Disclosure Schedule, in addition to any related transition services in respect thereof to be provided under the Seller-Company TSA and the Seller-ABS TSA.

Appears in 1 contract

Samples: Stock Purchase Agreement (Supervalu Inc)

Efforts. Subject to the terms and conditions of this Agreement, BGC Partners, Holdco and the Merger Subs, on the one hand, and each of BGC Holdings and the BGC Holdings GP, on the other hand, shall cooperate with the other and use, and shall cause their respective Subsidiaries to use, its reasonable best efforts to (a) ~~The Company shall cooperate and use commercially reasonable efforts to~~ take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things, necessary, proper or advisable ~~under applicable laws~~ to cause the conditions to the Closing to be satisfied as promptly as practicable (and ~~regulations~~ in any event no later than the Termination Date), and to consummate and make ~~effective~~ effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, ~~including~~including preparing and filing as promptly as practicable all documentation to effect all necessary filings, ~~without limitation~~notifications, ~~commercially reasonable efforts to~~ notices, petitions, statements, registrations, submissions of information, applications and other documents (iincluding any required or recommended filings under applicable Regulatory Laws), (b) ~~obtain~~obtain promptly all approvals, ~~prior to the Closing Date~~consents, ~~all licenses~~clearances, expirations or terminations of waiting periods, registrations, permits, ~~consents~~authorizations and other confirmations from any Governmental Entity or third party necessary, ~~approvals, authorizations, qualifications and orders of governmental authorities and parties~~ proper or advisable to ~~contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to~~ consummate the transactions contemplated by this ~~Agreement, in each case as are necessary for~~ Agreement and (c) defend any Proceedings challenging this Agreement or the consummation of the transactions contemplated by this ~~Agreement and to fulfill the conditions the Company is required to fulfill with respect~~ Agreement. Notwithstanding anything to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by contrary contained in this Agreement, ~~including~~none of BGC Partners, Holdco, the Merger Subs or their respective Subsidiaries shall be required to, and none of BGC Holdings, the BGC Holdings GP and their respective Subsidiaries shall, without ~~limitation~~the prior written consent of BGC Partners, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to take any action, ~~suit~~or commit to take any action, ~~proceeding~~ or ~~investigation against each such Purchaser relating~~ agree to ~~the transactions contemplated by this Agreement~~any condition or limitation, in each case ~~as are necessary for~~ contemplated by this Section 5.4 that is not conditioned on the consummation of the ~~transactions contemplated by this Agreement~~ Mergers or that would result in, or would be reasonably likely to result in, individually or in the aggregate, a material adverse effect on BGC Holdings, BGC Partners and ~~to fulfill the conditions each such Purchaser is required to fulfill with respect~~ their respective Subsidiaries, taken as a whole, after giving effect to the ~~transactions contemplated hereby~~Merger.

Appears in 1 contract

Samples: Corporate Conversion Agreement (BGC Partners, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, each of the Company and Parent shall ~~cooperate and~~ use ~~commercially~~ its reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and assist and cooperate with the other in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law or Order to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable, including (i) preparing and filing as promptly as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article 9). (b) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable (and in any event within ten (10) Business Days of the date of this Agreement in the case of the following clause (i) (unless counsel to the Parties have previously agreed to extend such ten (10) Business Day period)), (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement, ~~including~~(ii) an appropriate filing of a Form CO with the European Commission, ~~without limitation~~(iii) all necessary filings to obtain consents from the state regulators that are required in connection with the Merger and (iv) all other registrations, ~~commercially~~ declarations, notices and filings with Governmental Authorities that are required in connection with the Merger. Each of the Company and Parent shall use its reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be reasonably requested pursuant to the foregoing, and use its reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as reasonably practicable. (c) Except as prohibited by applicable Law or Order, each of Parent and the Company shall use its reasonable best efforts to (iA) ~~obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts~~ cooperate with each other in connection with any filing or submission with a Governmental Authority in connection with the ~~Company required to be obtained~~ transactions contemplated by ~~the Company,~~ this Agreement and ~~(ii) defend against and respond to~~ in connection with any ~~action, suit, proceeding~~ investigation or ~~investigation against the Company~~ other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, (B) promptly inform the other Party of (and if in writing, supply to the other Party) any communication (other than any ministerial communications) received by such party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, the European Commission, or any other similar Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case ~~as are necessary for consummation~~ regarding any of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, ~~including~~(C) consult with each other prior to taking any material position with respect to the filings under the HSR Act or any other Competition Law in discussions with or filings to be submitted to any Governmental Authority, ~~without limitation~~(D) permit the other to review and discuss in advance, ~~commercially~~ and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act or any other Competition Law, and (E) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act or any other Competition Law. Notwithstanding anything to the contrary herein, Parent shall, on behalf of the parties, have control over and lead all communications and strategy relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations under any Competition Law from any Governmental Authority or other Third Party in connection with consummating the Merger and the other transactions contemplated by this Agreement or to any litigation under any Competition Law arising therefrom; provided, however, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such approvals, as applicable. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section in a manner so as to preserve the applicable privilege. (d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) ~~obtain, prior~~ to the ~~Closing Date~~extent reasonably practicable, ~~all licenses~~not participate in or attend any meeting, ~~permits~~or engage in any conversation (other than ministerial conversations) with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 8.01(a)) without the other, ~~consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and~~ (ii) ~~defend against~~ to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and ~~respond~~ (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep such non-participating Party reasonably apprised with respect thereto. (e) Subject to the terms and conditions of this Agreement, including Section 8.01(f), each of Parent and the Company agrees to use its reasonable best efforts to take or cause to be taken, any and all steps and to make or cause to be made any and all undertakings necessary to resolve such objections, if any, that a Governmental Authority of competent jurisdiction asserts with respect to any ~~action, suit, proceeding or investigation against each such Purchaser relating~~ Required Competition Approval under any applicable Competition Law with respect to the Merger and the other transactions contemplated by this Agreement, and to avoid or eliminate each and every impediment under any applicable Competition Laws asserted by any such Governmental Authority of competent jurisdiction with respect to the Merger and the other transactions contemplated by this Agreement, in each case, to the extent necessary so as to enable the Closing to occur no later than the End Date, which reasonable best efforts shall include (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license or disposition of any businesses, assets, equity interests, product lines or properties of Parent or the Company (or any of their respective Subsidiaries), (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries and (z) otherwise taking or committing to take any action that would limit Parent’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of Parent or the Company (including any of their respective Subsidiaries) (each of (x), (y) and (z), the “Competition Actions”), in each case as ~~are~~ may be required in order to obtain any Required Competition Approval to the extent necessary ~~for~~ so as to enable the Closing to occur no later than the End Date. In addition each of Parent and the Company shall take any Competition Action to the extent necessary to avoid the entry of, or to effect the dissolution of, any Order by a Governmental Authority of competent jurisdiction under any Competition Law (each, a “Competition Law Order”) prohibiting the consummation of the Merger. To assist Parent in complying with its obligations set forth in this Section 8.01(e), if requested by Parent, the Company shall, and shall cause its Subsidiaries to, enter into one or more agreements requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that limits the Company’s or its Subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses, assets, equity interests, product lines or properties of the Company or any of its Subsidiaries (each, a “Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Divestiture Action shall be conditioned upon the Closing or satisfaction or waiver of all of the conditions to Closing in a case where the Closing will occur immediately following such Divestiture Action. Notwithstanding anything to the contrary in this Agreement, in the event the Parties are unable to agree on which actions to take pursuant to this Section 8.01(e), Parent shall have the final determination with respect to which action to take; provided, that such determination shall be consistent with Parent’s obligations under this Section 8.01(e). (f) Notwithstanding anything in this Agreement to the contrary, Parent and its Subsidiaries shall not be required to, and the Company and its Subsidiaries shall not, without the prior written consent of Parent, take any action, or commit to take any action, or agree to any condition or limitation contemplated in this Section 8.01, including any step or undertaking or action contemplated in Section 8.01(e), that (i) would, or would reasonably be expected to, have a material adverse effect on the business, results of operations, or financial condition of either (x) Parent and its Subsidiaries (but not including the Company and its Subsidiaries) or (y) the Company and its Subsidiaries, in each case of (x) and (y), measured on a scale relative to the Company and its Subsidiaries, taken as a whole, or (ii) in order to avoid the entry of, or to effect the dissolution of, any Competition Law Order in a jurisdiction other than the United States or any other jurisdiction set forth on Section 9.01(e) of the Company Disclosure Letter, would require Parent to take any action with respect to any business, properties or assets of Parent and its Subsidiaries, or the Company and its Subsidiaries, located outside of the home country of the Governmental Authority of competent jurisdiction in respect of such a Competition Law Order (either of (i) or (ii) above, a “Burdensome Condition”). (g) In furtherance and not in limitation of the covenants of the parties contained in this Section 8.01, if any administrative or judicial action or proceeding by the Federal Trade Commission or Department of Justice or other similar Governmental Authority of competent jurisdiction is instituted challenging the Merger or any other transaction contemplated by this Agreement as violative of any Competition Law, Parent shall use its reasonable best efforts to contest and resist any such action or proceeding and to ~~fulfill~~ have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~conditions each such Purchaser is required to fulfill with respect to~~ Merger and the other transactions contemplated ~~hereby~~by this Agreement; provided, that Parent shall not be required to, and the Company shall not, without the prior written consent of Parent, take any action under this Section 8.01(g) that would, or would be reasonably likely to, result in the imposition of a Burdensome Condition. To assist Parent in complying with its obligations set forth in this Section 8.01(g), the Company shall, and shall cause its Subsidiaries to, provide to Parent such cooperation as may be reasonably requested by Parent.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Becton Dickinson & Co)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth herein and to applicable Legal Requirements, each of the parties to this Agreement and their Subsidiaries and Affiliates shall cooperate and use ~~commercially~~ its respective reasonable best efforts to take, or cause to be taken, all appropriate ~~action required of the Company~~action, and ~~to make~~do, or cause to be ~~made~~done, and assist and cooperate with the other parties to this Agreement, including their Subsidiaries and Affiliates, in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws~~ to cause the conditions to the Closing set forth in Article IX to be satisfied as promptly as reasonably practicable or to effect the Closing and ~~regulations to~~ consummate and make effective the transactions contemplated ~~by this Agreement~~hereby as promptly as reasonably practicable, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~making all necessary Filings with Governmental Authorities or third parties, ~~prior to the Closing Date~~(ii) obtaining all necessary, ~~all licenses~~proper or advisable Consents, ~~permits~~registrations, ~~consents~~notices and applications as required by any Governmental Authority or applicable Legal Requirement or as required by any Contract, ~~approvals~~lease or agreement, ~~authorizations, qualifications and orders~~ including those disclosed in Schedule 4.13(a) of ~~governmental authorities and parties to contracts with~~ the Company ~~required~~ Disclosure Schedules and Schedule 9.1(b), (iii) obtaining the Required Company Statutory Approvals and all other Consents of Governmental Authorities that are necessary or proper to ~~be obtained by~~ consummate the Merger, and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger. (b) In furtherance and not in limitation of the foregoing, each of Parent, the Company, and the Securityholders shall make or cause to be made any required filings of a Notice and Report Form pursuant to the HSR Act and any other necessary Filings with Governmental Authorities within ten (10) Business Days after the date hereof, including, but not limited to, any required foreign Antitrust Law or foreign direct investment Filings. Parent, the Company, and the Securityholders each shall, and shall cause its Subsidiaries and controlled Affiliates to, (a) promptly supply the other party with any information which may be required in order to effectuate such filings; (b) respond as promptly as practicable to any inquiry received from FTC, DOJ, or any other Governmental Authority for additional information or documentation; and (c) take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Antitrust Laws as promptly as practicable. Each of Parent, the Company, and the Securityholders shall (i) promptly notify the other party of any material communication between that party and FTC, DOJ, or any other Governmental Authority and, subject to applicable Legal Requirements, discuss with and permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) ~~defend against and respond~~ consult with the other party in advance of participating in any meeting or discussion with FTC, DOJ, or any other Governmental Authority with respect to any ~~action~~filing, ~~suit~~investigation or inquiry concerning the transactions contemplated hereby and, ~~proceeding~~ to the extent permitted by such Governmental Authority, give the other party the opportunity to attend and participate thereat; and (iii) subject to applicable Legal Requirements, furnish the other party with copies of all written correspondence and communications between it or ~~investigation against the Company relating~~ its Affiliates and their respective Representatives and any Governmental Authority with respect to the transactions contemplated by this Agreement; provided, ~~in each case~~ however, that materials provided to the other party pursuant to this Section 6.10(b) may be redacted (x) to remove references concerning valuation or future plans for the Business, (y) as ~~are~~ necessary to comply with contractual obligations of confidentiality and (z) as necessary to address reasonable privilege concerns; provided, further, that the parties may, as they deem advisable, designate any competitively sensitive materials provided to the other under this Section 6.10 or any other Section of this Agreement as "outside counsel only." Such materials and the information contained therein shall be given only to outside counsel for ~~consummation~~ the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the ~~transactions contemplated by this Agreement~~ recipient without the prior written consent of the party providing such materials. Subject to Section 6.10(c), and ~~to fulfill~~ upon the terms and conditions set forth herein, each of the ~~Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser~~ parties shall ~~cooperate and~~ use ~~commercially~~ reasonable best efforts to take, or cause to be taken, ~~all appropriate action required of each~~ such ~~Purchaser,~~ actions and to ~~make~~do, or cause to be ~~made~~done, ~~all filings required~~ and to ~~be made by each~~ assist and cooperate with the other parties in doing, such ~~Purchaser~~ things, necessary, proper or advisable ~~under applicable laws and regulations~~ to ~~consummate and~~ make effective the transactions contemplated hereby, including obtaining confirmation of the expiration or termination of any applicable waiting periods under the HSR Act, clearances and approvals, if any, from the Governmental Authorities set forth in Schedule 9.1(b), resolving any investigation or other inquiry of any Governmental Authority, providing supplemental information requested by a Governmental Authority, avoiding any suit, Claim, action, investigation or proceeding of any Governmental Authority arising from its review of the transactions contemplated hereby and defending any suit, Claim, action or proceeding initiated by any Governmental Authority or Third Party under applicable Antitrust Laws for the purpose of preventing the consummation of the of the transactions contemplated hereby. Parent, the Company, and the Securityholders each shall be responsible for paying one-half (1/2) of each of the respective filing fees required to complete each of the merger filings under the HSR Act and any other Antitrust Laws of any jurisdiction where a filing is required in accordance with this Section 6.10(b) in connection with the transactions contemplated hereby. (c) Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall require or obligate Parent or any of its Affiliates to, and neither the Company nor its Affiliates or Representatives shall, without the prior written consent of Parent: (i) commence any litigation with any Governmental Authority or third party; (ii) commit, agree or otherwise become subject to any restriction, condition, limitation or other understanding on or with respect to the operation of the business of Parent or any of its Affiliates or the business of the Company that would be material to the business of Parent, its Affiliates and the Company, taken as a whole; (iii) agree or otherwise be required to license, sell or otherwise dispose of, hold separate (through the establishment of a trust or otherwise), or divest itself of any business, assets or operations of Parent or any of its Affiliates or the business of the Company that would be material to the business of Parent, its Affiliates and the Company, taken as a whole; or (iv) pay or commit to pay any material amount of cash or other consideration, or incur or commit to incur any material Liability or other obligation, in connection with obtaining any Consent, Permit or Order. For the avoidance of doubt, the matters disclosed on Schedule 6.2(b)(v)(A) shall not be prevented by this ~~Agreement~~Section 6.10(c). (d) Neither Parent nor the Company, ~~including~~including their respective Subsidiaries and Affiliates, shall, without ~~limitation~~the prior written consent of the other party (not to be unreasonably withheld, ~~commercially reasonable efforts~~ delayed or conditioned), enter into any Contract, including any timing agreement, with any Governmental Authority (i) that would, or would reasonably be expected to, delay the Closing beyond the End Date or (ii) not to effect the Closing before a date that is after the End Date. (e) Without limiting the foregoing, in no event shall Parent effect, or permit any of its Subsidiaries or controlled Affiliates to effect, any transaction, or enter into any agreement to effect any transaction (including any merger or acquisition), that would reasonably be expected to (i) ~~obtain~~impose any material delay in the obtaining, ~~prior to~~ or materially increase the ~~Closing Date~~risk of not obtaining, ~~all licenses, permits, consents, approvals, authorizations, qualifications and orders~~ the expiration or termination of ~~governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and~~ any applicable waiting period under the HSR Act or any other applicable Antitrust Laws; (ii) ~~defend against and respond to~~ materially increase the risk of any ~~action, suit, proceeding~~ Governmental Authority seeking or ~~investigation against each such Purchaser relating to~~ entering any injunction or other order or decree prohibiting the ~~transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the transactions contemplated by this ~~Agreement and~~ Agreement; (iii) materially increase the risk of not being able to ~~fulfill~~ remove any such injunction or other order or decree on appeal or otherwise; or (iv) prevent the ~~conditions each such Purchaser is required to fulfill with respect to~~ consummation of the transactions contemplated ~~hereby~~by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Inotiv, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts to take, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, including a waiver by the lenders of the change of control and merger restrictions contained in the Fourth Amended and Restated Credit Agreement among the Company, Citibank, N.A., BNP Paribas and the lenders thereunder, dated as of May 16, 2008, as amended, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer or the Merger and the other transactions contemplated hereby and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby. In furtherance of the foregoing, the Company may, but in no event shall ~~cooperate~~ the Company or any of its Subsidiaries be required to, pay prior to the Board Appointment Date any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Offer or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Authorities. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, if required under the HSR Act, the Company and Parent shall (i) promptly, but in no event later than 5:30 p.m. Eastern Daylight Savings time on the fifth Business Day after the date of this Agreement, file any and all Notification and Report Forms required under the HSR Act with respect to the Offer, the Merger and the other transactions contemplated hereby, and use ~~commercially~~ reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, Authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, Authorizations or approvals, (iii) supply to any Governmental Authority as promptly as practicable any additional information or documentary material that may be requested pursuant to any Regulatory Law or by such Governmental Authority, and (iv) use reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby. (c) Each of Parent and the Company shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and equityholders, and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Authority in connection with the Merger and the transactions contemplated by this Agreement. Subject to applicable legal limitations and the instructions of any Governmental Authority, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated by this Agreement, ~~including~~including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, ~~without limitation~~as the case may be, ~~commercially~~ or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Authority with respect to such Merger or transactions. The Company and Parent shall provide counsel for the other party a reasonable ~~efforts~~ opportunity to ~~(i) obtain~~review in advance, ~~prior~~ and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Authority. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the proposed transactions unless it consults with the other party in advance and, to the ~~Closing Date~~extent not prohibited by such Governmental Authority, ~~all licenses~~gives the other party the opportunity to attend and participate. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.10, ~~permits~~if any administrative or judicial action or proceeding, ~~consents~~including any proceeding by a private party, ~~approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required~~ is instituted (or threatened to be ~~obtained by~~ instituted) challenging the ~~Company~~Offer, ~~and (ii) defend against and respond to~~ the Merger or any ~~action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions~~ other transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use its respective reasonable best efforts to contest and resist any such action or proceeding and to ~~fulfill~~ have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~conditions~~ Offer, the ~~Company is required to fulfill with respect to the transactions~~ Merger or any other transaction contemplated hereby. (be) ~~Each Purchaser shall cooperate~~ For purposes of this Agreement, “Regulatory Law” means any and ~~use commercially reasonable efforts to take~~all state, federal and foreign statutes, rules, Regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or ~~cause to be taken~~the consent, ~~all appropriate action required of each such Purchaser~~clearance or approval of, ~~and to make~~any Governmental Authority, or that otherwise may cause ~~to be made~~any restriction, ~~all filings required to be made by each such Purchaser necessary~~in connection with the Offer, ~~proper or advisable under applicable laws~~ the Merger and ~~regulations to consummate and make effective~~ the transactions contemplated ~~by this Agreement~~thereby, ~~including, without limitation, commercially reasonable efforts to~~ including (i) ~~obtain~~the Xxxxxxx Act of 1890, ~~prior~~ the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to~~ any ~~action, suit, proceeding~~ Law governing the direct or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ indirect ownership or control of any of the ~~transactions contemplated by this Agreement~~ operations or assets of the Company and ~~to fulfill~~ its Subsidiaries or (iii) any Law with the ~~conditions each such Purchaser is required to fulfill with respect to~~ purpose of protecting the ~~transactions contemplated hereby~~national security or the national economy of any nation.

Appears in 1 contract

Samples: Merger Agreement (Parallel Petroleum Corp)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions set forth in this Agreement, each of the Parties hereto shall use commercially reasonable efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Laws and otherwise to complete and make effective the Merger and the other transactions contemplated by this Agreement, including: (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Specified Approvals and the Purchaser Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the completion of the Merger and the other transactions contemplated by this Agreement, and (iv) executing and delivering any additional instruments necessary to complete the transactions contemplated by this Agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Purchaser and Merger Sub shall: (i) promptly file any and all required Notification and Report Forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement (or, if such Party has an “ultimate parent entity”, then such Party shall cause that entity to make that filing), and use all reasonable efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use (and cause each of its Affiliates to use) commercially reasonable efforts to cooperate in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the completion of the transactions contemplated hereby, and (B) timely making all such filings and timely obtaining all such consents, permits, authorizations and approvals, (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, and (iv) use commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ other actions and ~~to make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ other things reasonably necessary, proper or advisable ~~under applicable laws and regulations~~ to ~~consummate~~ complete and make effective the transactions contemplated hereby, including taking (and causing each of its Affiliates to take) all such further actions as may be reasonably necessary to avoid or eliminate each and every impediment under any Law that may be asserted by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any ~~action, suit, proceeding~~ Governmental Entity or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill other Person with respect to the ~~transactions contemplated hereby~~Merger so as to enable the Merger to occur as soon as reasonably possible (and in any event, no later than the End Date). (bc) ~~Each~~ Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Purchaser shall ~~cooperate~~ keep each other apprised of the status of matters relating to the completion of the Merger, including promptly delivering the other with copies of notices or other communications received by the Company or Purchaser, as the case may be, or any of their respective Subsidiaries or other Affiliates, from any Governmental Entity or other Person with respect to such transactions. The Company and Purchaser shall AGREEMENT AND PLAN OF MERGER 44 permit counsel for the 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 Entity. Each of the Company and Purchaser agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the Merger unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate. (d) Purchaser agrees to, and will cause its Affiliates to, use commercially reasonable efforts to ~~take~~take any and all actions reasonably necessary to avoid, eliminate and resolve any and all impediments under the HSR Act or ~~cause to~~ any other Law that may be ~~taken, all appropriate action required of each such Purchaser, and to make,~~ asserted by any Governmental Entity or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill other Person with respect to the ~~transactions contemplated hereby~~Merger and to obtain all consents, approvals and waivers under the HSR Act or any other Law that may be required by any Governmental Entity to enable the Parties to close the Merger as promptly as practicable. (e) In furtherance and not in limitation of the covenants of the Parties contained in this Section 7.6, if any action or proceeding is instituted (or threatened) challenging the Merger as violating the HSR Act or any other Law or if any decree, order, judgment or injunction (whether temporary, preliminary or permanent) is entered, enforced or attempted to be entered or enforced by any Governmental Entity that would make the Merger illegal or otherwise delay or prohibit the consummation of the Merger, the Company and Purchaser and their respective Affiliates shall take any and all commercially reasonable actions to contest and defend any such Claim, to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded or terminated, any decree, order, judgment or injunction (whether temporary, preliminary or permanent) that prohibits, prevents or restricts consummation of the Merger.

Appears in 1 contract

Samples: Merger Agreement (Avista Corp)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each party will use ~~commercially~~ reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do promptly, or cause to be ~~made~~done promptly, and to assist and cooperate with each other in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws and regulations~~ Law to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, ~~including~~including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the Mergers and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees (i) to make appropriate filings of a Notification and Report Form pursuant to the HSR Act, including (x) any required filings by the Company with respect to any Management Business Sale and (y) any required filings by the Company and Parent with respect to the Acquisition Merger without ~~limitation~~giving effect to a Management Business Sale, ~~commercially~~ and any other filings pursuant to applicable Regulatory Laws with respect to the transactions contemplated hereby, which filings shall be made promptly, but in no event later than ten (10) Business Days after the date hereof (in the case of the filing pursuant to clause (y)), or ten (10) Business Days after the date the Company enters into a definitive agreement (in the case of the filing pursuant to clause (x)), and as promptly as practicable after the date hereof with respect to any filing pursuant to other applicable Regulatory Laws, (ii) to use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Effective Date with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Date from, Governmental Authorities or any other Person in connection with the execution and delivery of this Agreement, and the consummation of the Mergers, any Management Business Sale and the other transactions contemplated by this Agreement, including any such consents, approvals, permits or authorizations as may be necessary to avoid a material Violation of any Specified Contract, (B) timely completing all necessary documentation and related forms or paperwork as may be required for all such filings, and (C) timely making all such filings to obtain all consents, approvals, permits and authorizations, (iii) to furnish promptly to the other party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with such information and reasonable assistance as such other party and its Affiliates may reasonably request in connection with their preparation of necessary filings, registrations, and submissions of information to any Governmental Authority, including any filings under the Regulatory Laws, (iv) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Regulatory Laws and (v) to use reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to obtain applicable clearances, consents, authorizations, approvals or waivers and to cause the expiration or termination of the applicable waiting periods with respect to the approval of the Mergers and any Management Business Sale under the HSR Act and any other applicable Regulatory Laws as promptly as practicable and in any event no later than the End Date. (b) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 7.2(a), use its reasonable best efforts to (i) ~~obtain~~cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained including any proceeding initiated by ~~the Company, and~~ a private party; (ii) ~~defend against~~ promptly notify the other party of any communication concerning this Agreement and ~~respond~~ any of the transactions contemplated hereby to that party from any ~~action, suit, proceeding or investigation against~~ Governmental Authority and consider in good faith the ~~Company relating~~ 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, including furnishing the other with any written notices or other communications received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Authority 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; and (iii) permit the other party to review in draft any proposed communication to be submitted by it to, 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 in-person or telephonic meeting or conference with, the FTC, the DOJ or any other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, not agree to participate in any meeting or substantive discussion (including any discussion relating to the antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, and any agreement regarding the timing of consummation of the Mergers and the Management Business Sale) with any Governmental Authority relating to any filings or investigations concerning this Agreement and any of the transactions contemplated hereby unless it consults with the other party and its Representatives in advance and invites the other party’s Representatives to attend in accordance with Regulatory Laws; provided, however, that nothing in this Agreement shall prevent a party from responding to or complying with a subpoena or other legal process required by Law or submitting factual information in response to a request therefor. (c) In furtherance and not in limitation of the covenants of the parties contained in Section 7.2(a) and Section 7.2(b), each party hereto shall use its reasonable best efforts to resolve objections, if any, as ~~are necessary for~~ may be asserted with respect to the transactions contemplated by this Agreement under any Regulatory Laws, including defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and thereby (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed). In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority, or private party challenging the Mergers, the Management Business Sale or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of Parent, Merger Sub and the Company shall cooperate with the other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this ~~Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~Agreement. (bd) ~~Each Purchaser~~ In furtherance of, and not in limitation of, the covenants of the parties contained in Section 7.2(a), Section 7.2(b), Section 7.2(c) and Section 7.2(d), Parent and Merger Sub shall ~~cooperate and use commercially reasonable efforts to~~ take, or cause to be taken, all ~~appropriate action required~~ such further actions as may be necessary to resolve such objections, if any, as the FTC, the DOJ, state antitrust enforcement authorities or competition authorities of ~~each such Purchaser~~any other nation or other jurisdiction or any other Person may assert under any Law with respect to the Mergers, the Management Business Sale and the other transactions contemplated hereby, and to ~~make~~avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Authority with respect to the Mergers, the Management Business Sale and the other transactions contemplated hereby so as to enable the Closing to occur as promptly as reasonably practicable and in any event no later than the End Date, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, regardless of the consideration, the sale, divestiture, license or disposition of any assets or businesses of the Company, Holdco, its Subsidiaries or Joint Ventures, or ~~cause~~ of Parent or its Subsidiaries, and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Parent, Holdco, the Company Surviving Corporation, their Subsidiaries’ or the Joint Ventures’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ or Joint Ventures’ businesses, product lines or assets, in each case as may be ~~made~~required in order to effect the satisfaction of the conditions to the Mergers set forth in Article VIII prior to the End Date and to avoid the entry of, ~~all filings~~ or to effect the dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date; provided, however, that (i) neither Holdco, the Company nor any of its Affiliates shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any Order, requirement, condition, understanding or agreement of or with a Governmental Authority to sell, to license, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Holdco, the Company or any of its Affiliates, unless such Order, requirement, condition, understanding or agreement is binding on the Company only in the event that the Mergers occur; and (ii) nothing in this Section 7.2 shall require, or be ~~made by each~~ construed to require Parent, Holdco, the Company or their respective Subsidiaries or Affiliates to sell, divest, license or dispose of or hold separate (or to propose or agree to sell, divest, license or dispose of or hold separate), before or after the Closing, any assets or businesses of Parent, Holdco, the Company or any of their respective Subsidiaries or Affiliates, if such ~~Purchaser necessary~~action would be reasonably expected to, ~~proper~~ individually or ~~advisable under applicable laws~~ in the aggregate, result in (after giving effect to any reasonably expected proceeds of any sale, divestiture, license or disposition) a material adverse effect on the business or financial condition of the Company, the Subsidiary and ~~regulations~~ the Joint Ventures, taken together as a whole. (e) Any other provision of this Agreement notwithstanding, in connection with obtaining any approval or consent from any Person (other than a Governmental Authority) with respect to ~~consummate and make effective~~ the Mergers, the Management Business Sale or the other transactions contemplated by this Agreement, ~~including, without limitation, commercially reasonable efforts to~~ (i) ~~obtain~~if reasonably requested in writing by Parent, ~~prior~~ the Company shall, shall cause its Subsidiaries or shall use reasonable best efforts to cause its Significant Joint Ventures to, execute any documents, agreements and instruments and take such other actions to the ~~Closing Date~~extent practicable, all ~~licenses~~in such order, ~~permits~~form and substance as reasonably requested by Parent, ~~consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser~~ and (ii) ~~defend against and respond to~~ without the prior written consent of Parent, none of the Company or any of its Subsidiaries or Significant Joint Ventures shall take any action, ~~suit, proceeding~~ agree to take any action or ~~investigation against each such Purchaser relating~~ consent to the ~~transactions contemplated by~~ taking of any action pursuant to this ~~Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill~~ Section 7.2 (including with respect to ~~the transactions contemplated hereby~~selling, holding separate or otherwise disposing of assets or conducting its business in a specified manner).

Appears in 1 contract

Samples: Merger Agreement (Health Care Reit Inc /De/)

Efforts. (a) ~~The Company shall cooperate~~ Subject to the terms and conditions of this Agreement, each Party will use ~~commercially~~ its respective reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ Law to consummate ~~and make effective~~ the ~~transactions contemplated by this Agreement~~Transactions, ~~including~~including the Merger, ~~without limitation~~as soon as practicable after the date hereof, ~~commercially reasonable efforts to~~ including (i) ~~obtain~~preparing and filing or otherwise providing, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents to obtain as promptly as reasonably practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any Governmental Authority in order to consummate the Transactions, including the Merger, (ii) taking all actions as may be necessary, subject to the limitations in this Section 6.4, to obtain (and cooperating with each other in obtaining) all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders, and approvals, and (iii) providing all notices as required pursuant to the Company Warrants. Each of Parent, Merger Sub and the Company shall use their respective reasonable best efforts not to, and the Company shall cause the Company Subsidiaries not to, (i) take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any such Governmental Authority necessary to be obtained prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) ~~defend against and respond~~ take or cause to be taken any ~~action~~action that would reasonably be expected to materially delay, ~~suit~~impede, ~~proceeding~~ or ~~investigation against~~ prevent the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the ~~transactions contemplated by this Agreement and to fulfill~~ Transactions on or before the ~~conditions the Company is required to fulfill with respect to the transactions contemplated hereby~~Outside Date. (b) ~~Each Purchaser~~ In connection with and without limiting the foregoing, in the event that Parent reasonably requests the Company to do so, and after good-faith consultation with the Company with respect thereto, the Company shall ~~cooperate~~ give any notices to third parties required under Contracts (other than Contracts that may be canceled or terminated for convenience), and ~~use~~ the Company shall use, and cause each of Company Subsidiaries to use, its commercially reasonable efforts to ~~take~~seek to obtain any Third Party consents to any Contracts (other than Contracts that may be canceled or terminated for convenience) that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment, or ~~cause~~ consideration, make any other concession or provide any additional security (including a guaranty), to ~~be taken, all appropriate action required of each~~ obtain such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to Third Party consents (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreementexcept, in ~~each~~ the case ~~as are necessary for consummation~~ of the ~~transactions contemplated~~ Company, if requested by ~~this Agreement~~ Pxxxxx and ~~to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated hereby~~reimbursed or indemnified for by Parent).

Appears in 1 contract

Samples: Merger Agreement (Wireless Telecom Group Inc)

Appears in 1 contract

Samples: Merger Agreement (Ariad Pharmaceuticals Inc)

Efforts. 5.1 Subject to the terms and conditions of this Agreement, the Company and Bidder shall (aand shall cause their respective Subsidiaries to) ~~The Company shall cooperate and~~ each use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under applicable ~~laws and regulations~~ law to consummate and make effective the transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable, including, but without ~~limitation, commercially reasonable efforts to (i) obtain, prior~~ prejudice to the ~~Closing Date~~confirmation and representation of the Bidder to the Company set forth in Section 2.2, (a) the obtaining of all ~~licenses~~necessary actions, waivers, registrations, permits, ~~consents, approvals,~~ authorizations, ~~qualifications~~ orders, consents and ~~orders~~ approvals from any governmental authority in the U.S., Belgium, Germany or otherwise (“Governmental Authority”), the expiry or early termination of ~~governmental authorities~~ any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of any and all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (b) the delivery of required notices to, and the obtaining of required consents or waivers from, third parties necessary to ~~contracts~~ consummate the transactions contemplated by this Agreement and (c) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. 5.2 In furtherance and not in limitation of the undertakings pursuant to this Article 5 each of the Bidder and, to the extent required by applicable law, the Company shall (a) promptly (but in no event later than 10 business days after the date hereof) prepare and file any notification and report forms and related material required under the HSR Act and other applicable U.S. or non-U. S. antitrust laws (“Antitrust Laws”) with respect to the transactions contemplated by this Agreement, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, as promptly as reasonably practicable and advisable, (b) provide or cause to be provided as promptly as reasonably practicable and advisable any information and documentary material that may be requested by the U.S. Department of Justice (“DOJ”) or the U.S. Federal Trade Commission (“FTC”) under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (c) use its reasonable best efforts to take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the transactions contemplated by this Agreement by the DOJ or FTC or other applicable Governmental Authorities. Bidder shall pay all filing fees required by any Governmental Authority for filings made under this section. 5.3 Subject to applicable law, the Company and Bidder and their respective counsel shall (a) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the ~~Company required to be obtained~~ transactions contemplated by ~~the Company,~~ this Agreement and ~~(ii) defend against and respond to~~ in connection with any ~~action, suit, proceeding~~ investigation or ~~investigation against the Company~~ other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private person, (b) have the right to review in advance, and to the extent practicable each ~~case as are necessary for consummation of~~ shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the transactions contemplated by this Agreement and ~~to fulfill the conditions the Company is required to fulfill~~ of any material communication received or given in connection with ~~respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take~~any proceeding by a private Person, ~~or cause to be taken, all appropriate action required~~ in each case regarding any of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, ~~including~~(c) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, ~~without limitation~~or given to, ~~commercially reasonable efforts to (i) obtain, prior to~~ the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser DOJ or the FTC or any other applicable Governmental Authority and (iid) ~~defend against~~ promptly furnish each other with copies of all correspondence, filings and ~~respond to~~ written communications between them or their subsidiaries or affiliates, on the one hand, and any ~~action~~Governmental Authority or its respective staff, ~~suit~~on the other hand, ~~proceeding or investigation against each such Purchaser relating~~ with respect to the transactions contemplated by this Agreement. The Company and Bidder shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in ~~each case as are necessary for consummation~~ any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, Bidder shall, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, direct and control all aspects of the parties’ efforts to gain regulatory clearance either before any Governmental Authority or in any action brought to enjoin the transactions contemplated by this Agreement pursuant to any Antitrust Laws; provided, that each of the parties hereto shall have the right to review in advance, and to ~~fulfill~~ the ~~conditions~~ extent practicable each ~~such Purchaser is required~~ will consult the other on, all the information relating to ~~fulfill~~ the other parties and their respective subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any third party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the transactions contemplated ~~hereby~~by this Agreement. The Company and Bidder may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Article 5 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Article 5, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company. 5.4 Notwithstanding the undertakings of Bidder pursuant to Section 5.1 through Section 5.3, in no event shall anything in this Agreement require, or be construed to require, the Company, Bidder or any of their respective affiliates to take, or agree to take, any action that would, individually or in the aggregate, result in a material adverse effect on the business, results of operations, assets or financial condition of the Company and its subsidiary, taken as a whole or Bidder and its subsidiaries, taken as a whole (which shall exclude Company and its subsidiary); provided that for purposes of determining whether a material adverse effect shall have occurred such effect shall be measured relative to the size of the Company and its subsidiary, taken as a whole.

Appears in 1 contract

Samples: Heads of Agreement (Sanofi)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall, and shall cause their respective Affiliates to, cooperate with each other and use ~~commercially reasonable~~ their best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable under ~~applicable laws and regulations~~ Applicable Law to consummate the Merger and ~~make effective~~ the other transactions contemplated by this Agreement as promptly as practicable, including (a) the obtaining of all necessary consents, approvals or waivers from Third Parties, (b) preparing and filing as promptly as practicable after the date hereof with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (c) obtaining and maintaining all approvals, consents, registrations, Permits, authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority that are necessary to consummate the transactions contemplated by this Agreement, ~~including~~(d) defending or contesting (including through litigation on the merits) any action, ~~without limitation~~suit or proceeding challenging this Agreement or the transactions contemplated hereby and (e) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby; provided, ~~commercially reasonable efforts~~ however, that in no event shall Parent, the Company or any of their Subsidiaries be required to ~~(i) obtain,~~ pay prior to the ~~Closing Date~~Effective Time any fee, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond penalty or other consideration to any ~~action, suit, proceeding~~ Third Party for any consent or ~~investigation against~~ approval required for the ~~Company relating to the transactions contemplated by this Agreement, in each case as are necessary for~~ consummation of the transactions contemplated by this Agreement under any contract or agreement. (b) In furtherance and ~~to fulfill~~ not in limitation of the ~~conditions~~ foregoing, Parent and the Company ~~is required~~ shall, and shall cause their respective Affiliates to, (1) make (i) an appropriate filing of a Notification and Report Form pursuant to ~~fulfill~~ the HSR Act as promptly as practicable (and in any event within ten (10) Business Days after the date hereof) and (ii) other appropriate filings necessary pursuant to any Foreign Antitrust Law (collectively with the HSR Act, the “Antitrust Laws”) as promptly as practicable, in each case with respect to the transactions contemplated hereby, (2) comply at the earliest practicable date with any request under any of the Antitrust Laws for additional information, documents, or other materials received by each of them or any of their respective Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (3) cooperate with each other in connection with any such filing (including, to the extent permitted by Applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any Governmental Authority under any of the Antitrust Laws with respect to any such filing or any such transaction. In furtherance and not in limitation of the foregoing, as promptly as reasonably practicable following the date of this Agreement, Parent and Company shall (x) submit a draft joint voluntary notice to CFIUS and (y) submit a final joint voluntary notice to CFIUS, each with regard to this Agreement and other related information pursuant to Section 721 of the Defense Production Act of 1950, as amended. Each of Parent and the Company shall respond to any request for information from CFIUS in the timeframe set forth in the CFIUS regulations, 31 C.F.R. Part 800; provided, however, that either party, after consultation with the other party, may request in good faith an extension of time pursuant to 31 CFR § 800.403(3) to respond to CFIUS requests for follow-up information, provided that under no circumstance may a party request any extension that causes CFIUS to reject the voluntary notice filed by the parties or modifies the time for completion of the CFIUS review or investigation. Each such party shall use its best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Applicable Law in connection with the transactions contemplated by this Agreement. Each such party shall as promptly as practicable inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction except such written communications conveying the “personal identifier information” required under 31 CFR § 800.402(c)(6)(vi)(B). No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to Applicable Law, the parties hereto will 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 hereto relating to proceedings under any of the Antitrust Laws or Regulatory Laws. Notwithstanding anything in the foregoing to the contrary, any such disclosures, rights to participate or provisions of information by one party to the other may be made on a counsel-only basis (counsel to include outside counsel and relevant in-house counsel handling proceedings under any Antitrust Laws or Regulatory Laws) if allowed or required under Applicable Law, and further, either party may in good faith reasonably withhold from disclosure to the other party privileged or classified information, and sensitive personal data. (bc) ~~Each Purchaser~~ Notwithstanding anything herein to the contrary: (i) Parent shall ~~cooperate~~ take, and ~~use commercially reasonable efforts~~ shall cause its Affiliates to take, any and all action necessary, including but not limited to (A) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Affiliates; (B) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Affiliates; (C) terminating any venture or other arrangement; (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Affiliates, (E) agreeing to mitigation measures regarding post-closing operations of the Company or its Affiliates required by the National Security Authorities or (F) effectuating any other change or restructuring of the Company or Parent or their respective Affiliates (and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with: (x) the Federal Trade Commission, the Department of Justice, any attorney general of any state of the United States, the European Commission or any other competition authority of any jurisdiction (“Antitrust Authority”); (y) CFIUS, the President of the United States, the United States Department of Defense (including the Defense Security Services), the United States Department of State, the United States Department of Energy or the United States Department of Justice (collectively, the “National Security Authorities”, and, collectively with the Antitrust Authority, the “Regulatory Authorities”); or (z) all other Governmental Authorities; in connection with any of the foregoing (each a “Divestiture Action”)), and (ii) Company and its Subsidiaries shall, upon request by Parent, consent and/or agree as needed in order to effectuate a Divestiture Action to the extent such action relates to the Company or its Affiliates or its or their businesses or assets, in the case of each of clause (i) and (ii), to ensure that no Governmental Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger (“Regulatory Prohibition”), or to ensure that no Regulatory Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger fails to do so, by the End Date; provided, however, that any action under this subparagraph (c), by Parent, the Company or their Affiliates is not required unless conditioned upon consummation of the Merger. Further, Parent and the Company shall not take, and shall not permit their respective Affiliates to take, any action (including the acquisition by it or its Affiliates of any interest in any Person that derives revenues from products, services or lines of business similar to the Company’s products, services or lines of business) if such action would make it materially more likely that there would arise any impediments under any Antitrust Law or any Regulatory Law that may be asserted by any Governmental Authority to the consummation of the transactions contemplated hereby as promptly as practicable. In the event that any action is threatened or instituted challenging the Merger as violative of any Antitrust Law or any Regulatory Law, Parent shall, and shall cause its Affiliates to, defend and contest (including through litigation on the merits), or otherwise resolve, the action (with the Company’s cooperation), and shall take all other actions necessary, including but not limited to any Divestiture Action, to allow the consummation of the transactions by the End Date. In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be ~~taken~~entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, ~~all appropriate action required~~ enjoin or otherwise prevent or materially delay the consummation of each such Purchaser, and to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, Parent shall take, and shall cause its Affiliates to take, as promptly as practicable any and all steps necessary to vacate, modify or suspend such injunction or order so as to permit such consummation by the End Date. The Company shall cooperate with Parent and shall use its best efforts to assist Parent in resisting any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and in negotiating and conducting any Divestiture Action. Without limiting the obligations set forth in this Section 8.01, Parent shall control and lead all actions, strategy and communications, and make all determinations as to the appropriate course of action and the timing of all actions and communications, with respect to Antitrust Laws, Regulatory Laws, Regulatory Authorities and all other related matters, including dealings with Regulatory Authorities and any Divestiture Actions or litigation under Antitrust Laws or Regulatory Laws; provided, however, that Parent shall, and shall cause its Affiliates to, to the extent permitted by Applicable Law and Governmental Authority, (i) if practicable under the circumstances and without causing undue delay or impeding Parent’s ability to satisfy its obligations in this Section 8.01(c), consult with the Company in advance of any meeting, teleconference or other communication with such Governmental Authority and provide the Company with an opportunity to attend or participate in such meeting, teleconference or other communication, (ii) afford the Company an opportunity to review any written advocacy materials to be submitted to such Governmental Authority in advance of the submission thereof, and (iii) furnish the Company with copies of all written materials received by or on behalf of such party from such Governmental Authority, in each case to the extent permitted by Applicable Law. The Company shall not, without Parent’s prior written consent or request, communicate, offer, negotiate, or agree or bind itself or Parent, with any Regulatory Authority or other third party regarding any Divestiture Action. Notwithstanding anything to the contrary in this Agreement, the process for obtaining CFIUS approval shall be managed jointly by Parent and Company, Parent and Company shall jointly make all final determinations as to the appropriate course of action and all communications and filings (including, ~~without limitation~~a withdrawal of submission) to and with CFIUS shall be jointly coordinated between Parent and Company. However, ~~commercially~~ Parent shall make final determinations concerning agreements and undertakings to be entered into with CFIUS. The Company and Parent shall permit counsel for the other party reasonable ~~efforts~~ 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. Each of the Company and Parent agrees not to participate in any substantive CFIUS-related meeting or discussion, either in person or by telephone, with any Governmental Authority in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate. (d) For purposes of this Agreement, “Regulatory Law” means the Defense Production Act of 1950, as amended, the International Traffic in Arms Regulations (“ITAR”), applicable requirements of the National Industrial Security Program, the Export Administration Regulations, the embargoes and restrictions administered by the United States Office of Foreign Assets Control and any Executive Orders of the President regarding embargoes and restrictions on trade with designated countries, entities and persons, and all other federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Applicable Laws, including any Applicable Laws related to antitrust, competition or trade regulation, that are designed or intended to (i) ~~obtain~~prohibit, ~~prior to~~ restrict or regulate actions having the ~~Closing Date~~purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser and (ii) ~~defend against and respond to any action, suit, proceeding~~ regulate the business or ~~investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation~~ operations of the ~~transactions contemplated by this Agreement and to fulfill~~ Company or its Subsidiaries or (iii) protect the ~~conditions each such Purchaser is required to fulfill with respect to~~ national security or the ~~transactions contemplated hereby~~national economy of any nation.

Appears in 1 contract

Samples: Merger Agreement (Mentor Graphics Corp)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions of this Agreement and applicable law, each of the parties hereto shall ~~cooperate~~ act in good faith and use commercially reasonable efforts to take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to ~~make~~do, or cause to be ~~made~~done, all ~~filings required to be made by the Company~~ things necessary, proper or advisable ~~under applicable laws and regulations~~ to consummate and make effective the transactions contemplated ~~by this Agreement~~hereby as soon as practicable, ~~including, without limitation, commercially reasonable efforts~~ including such actions or things as the other party may reasonably request in order to ~~(i) obtain, prior~~ cause any of the conditions to ~~the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties~~ such other party's obligation to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of consummate the transactions contemplated by this Agreement to be fully satisfied. Without limiting the foregoing, the parties shall consult and fully cooperate with and provide assistance to ~~fulfill~~ each other in obtaining all necessary consents, approvals, waivers, licenses, Permits, authorizations, registrations, qualifications or other permissions or action by, and giving all necessary notices to and making all necessary filings with and applications and submissions to, or filing with any Person as soon as reasonably practicable after filing. Prior to making any application or filing with any Person in connection with this Agreement, each party shall provide the ~~conditions~~ other party with drafts thereof and afford the ~~Company is required~~ other party a reasonable opportunity to ~~fulfill with respect to the transactions contemplated hereby~~comment on such drafts. (b) ~~Each Purchaser shall cooperate and use commercially reasonable efforts to take, or cause to be taken, all appropriate action required of each such Purchaser~~As soon as practicable, and ~~to make~~in any event no later than ten (10) business days after the date hereof, ~~or cause to be made, all filings~~ each of the parties shall file any Notification and Report Forms and related material required to be ~~made~~ filed by ~~each such Purchaser~~ it with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the HSR Act with respect to transactions contemplated hereby and shall promptly make any further filings pursuant thereto that may be necessary, proper or ~~advisable under applicable laws~~ advisable. Each of Buyer and ~~regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, commercially reasonable efforts to (i) obtain, prior~~ Seller shall furnish to the ~~Closing Date~~other such information and assistance as the other shall reasonably request in connection with the preparation of any submissions to, ~~all licenses~~or agency proceedings by, ~~permits~~any Governmental Entity under the HSR Act or any comparable laws of foreign jurisdictions, ~~consents~~and each of Buyer and Seller shall keep the other promptly apprised of any communications with, ~~approvals~~and inquiries or requests for information from, ~~authorizations, qualifications and orders of governmental authorities and parties to contracts with each~~ such Purchaser required to be obtained by each such Purchaser and (ii) defend against and respond to any action, suit, proceeding or investigation against each such Purchaser relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyGovernmental Entities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Lee Enterprises Inc)

Efforts. (a) ~~The Company~~ Subject to the terms and conditions of this Agreement and except as otherwise expressly provided in this Agreement, Purchaser, Parent and Seller shall, and shall ~~cooperate and~~ cause their respective Affiliates to, use ~~commercially~~ their respective reasonable best efforts to promptly take, or cause to be taken, all ~~appropriate action required of the Company~~actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective in the most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents, including (i) the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 8.1) and to consummate the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents as soon as practicable and (ii) the execution and delivery of any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents and to fully carry out the purposes of this Agreement and the other Transaction Documents. Without limiting the foregoing, except as otherwise expressly provided in this Agreement, Purchaser, Parent and Seller shall, and shall cause their respective Affiliates to, promptly take all actions reasonably necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Regulatory Approvals) required to be obtained or made by Purchaser, Parent, Seller, the other Seller Entities or any of their respective Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents. Additionally, Purchaser, Parent and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing. (b) Prior to the Closing, the Purchaser Parties and Seller shall each keep the other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents and consult and cooperate in all respects with each other, and consider in good faith the views of the other Parties with respect to obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreements and Section 5.4, each Party shall promptly consult with the other Parties to provide any necessary information with respect to (and, in the case of correspondence, provide the other Parties (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents. Subject to the Confidentiality Agreements and Section 5.4, each Party shall promptly inform the other Parties, and if in writing, furnish the other Parties with copies of (or, in the case of oral communications, advise the other Parties orally of) any communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding the Transaction and the other transactions contemplated by this Agreement, and permit the other Parties to review and discuss in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication with any such Governmental Entity. If any Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents, then such Party will make, or cause to be made, ~~all filings required to be made by~~ promptly and after consultation with the ~~Company necessary~~other Parties, ~~proper~~ an appropriate response in compliance with such request. None of Parent, Purchaser or ~~advisable under applicable laws~~ Seller, or any of their respective Affiliates or Representatives, shall participate in any meeting with any Governmental Entity in connection with this Agreement and ~~regulations to consummate and make effective~~ the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other Parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other Parties the opportunity to attend and participate thereat. Subject to the Confidentiality Agreements and Section 5.4, each Party shall furnish the other Parties with copies of all correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents, and furnish the other Parties with such necessary information and reasonable assistance as the other Parties may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Parent, Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only” (including documents filed pursuant to Item 4(c) and Item 4(d) of the HSR Notification and Report Form). Such materials and the information contained therein shall be given only to the outside legal counsel 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, Purchaser or Seller, as the case may be). Materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process or any Party’s negotiating objectives, strategies or purchase price expectations, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns. (c) Without limiting the foregoing, Parent, Purchaser and Seller shall, and shall cause their respective Affiliates to, file, as promptly as practicable, but in any event no later than ten (10) days after the date of this Agreement, ~~including~~notifications under the HSR Act (the filing fees of any such Filings to be borne by the Purchaser Parties, ~~without limitation~~except that Seller shall be responsible for any filing fees in connection with any Filings under the HSR Act relating to its acquisition of Parent Shares). (d) In furtherance of the foregoing, ~~commercially reasonable efforts~~ and with the exceptions noted below, Purchaser shall, and shall cause its Affiliates to, promptly take all action as may be reasonably necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the transactions contemplated hereby and by the other Transaction Documents and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably possible (and in any event so as to enable the Closing to occur prior to the Outside Date). Notwithstanding the foregoing, the Purchaser Parties shall not be required to (i) ~~obtain~~proffer to and agree to sell, ~~prior to~~ divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the ~~Closing Date~~Closing, ~~all~~ any assets, licenses, ~~permits~~operations, ~~consents~~rights, ~~approvals~~product lines, ~~authorizations, qualifications~~ businesses or interests therein of the Business or of Parent or its Affiliates (and ~~orders of governmental authorities and parties to contracts with the Company~~ shall not be required to ~~be obtained~~ consent to any sale, divestiture, lease, license, transfer, disposition or other encumbering by the ~~Company~~Seller Entities of any assets of the Business or to any agreement by any of the Seller Entities to take any of the foregoing actions), ~~and~~ nor (ii) ~~defend against~~ agree to make any changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or Purchaser’s ability to own, retain, operate or grow (by acquisition or otherwise), any such assets, licenses, product lines, businesses or interests therein or Parent’s or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Parent, Purchaser or their Affiliates; provided, however, that, to the extent required to satisfy the condition set forth in Section 8.1(a), Purchaser and ~~respond~~ Parent shall take any of the foregoing actions set forth above in this Section 5.1(d) with respect to any ~~action, suit, proceeding or investigation against~~ Business Brand(s) that in the ~~Company relating~~ aggregate contributed less than $50 million in aggregate revenue to the ~~transactions contemplated by~~ Business for the preceding twelve (12) month period ending on the date of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the Purchaser Parties shall not be required to defend, contest, resist, or participate in ~~each case as are necessary for consummation of~~ any Proceeding or investigation, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Judgment, whether temporary, preliminary or permanent, in connection with the transactions contemplated by this Agreement and the other Transaction Documents. Notwithstanding anything in this Agreement to ~~fulfill~~ the ~~conditions~~ contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to take any action (i) that is not conditioned on the ~~Company is~~ Closing or (ii) that relates to any assets or businesses of Seller; and in no event shall Seller or any of its Affiliates be required to ~~fulfill with~~ be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect to of any such agreements, transactions or relationships, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by the ~~transactions contemplated hereby~~Purchaser Parties. (be) Each of the Purchaser ~~shall cooperate~~ Parties agrees to provide such security and ~~use commercially reasonable efforts~~ assurances as to ~~take~~financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or ~~cause to be taken, all appropriate action required of each such Purchaser,~~ other third party whose Approval is sought in connection with the Transaction and ~~to make, or cause to be made, all filings required to be made by each such Purchaser necessary, proper or advisable under applicable laws and regulations to consummate and make effective~~ the other transactions contemplated by this Agreement and the other Transaction Documents. Whether or not the Transaction is consummated, the Purchaser Parties shall be responsible for all fees and payments (including filing fees and legal and professional fees) to any third party or any Governmental Entity that are incurred in order to obtain any Approvals pursuant to this Agreement, ~~including, without limitation, commercially reasonable efforts~~ other than the fees of and payments to (iSeller’s legal and professional advisors and any filing fees that are the responsibility of Seller pursuant to Section 5.1(c) ~~obtain, prior~~ or any of the other Transaction Documents. Notwithstanding anything in this Agreement to the ~~Closing Date~~contrary, ~~all licenses~~except for payment of filing fees required pursuant to Section 5.1(c) and as set forth and subject to the limitations in Section 5.1(d), ~~permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with each such~~ Purchaser shall not under any circumstance be required to ~~be obtained by each such Purchaser and~~ pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (iifinancial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) ~~defend against and respond~~ to any ~~action~~Person to obtain any Approval. (f) Notwithstanding anything in this Agreement to the contrary, ~~suit~~none of Seller, ~~proceeding~~ the other Seller Entities or ~~investigation against each such~~ any of their respective Affiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. None of Seller, the other Seller Entities or any of their respective Affiliates shall have any Liability whatsoever to the Purchaser Parties or any of their Affiliates arising out of or relating to the failure to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this ~~Agreement~~Agreement or the other Transaction Documents or because of the termination of any Contract or any default under, ~~in each case~~ or acceleration or termination of or loss of any benefit under, any Contract or other Purchased Asset as ~~are necessary for consummation~~ a result thereof. The Purchaser Parties acknowledge that no representation, warranty or covenant of Seller contained herein shall be breached or deemed breached, and no condition to the Purchaser Parties’ obligations to consummate the transactions contemplated by this Agreement ~~and~~ or the other Transaction Documents (other than as a result of the failure to ~~fulfill~~ satisfy a condition expressly set forth in Section 8.1(a) or Section 8.1(b)) shall be deemed not satisfied solely as a result of (i) the ~~conditions each~~ failure to obtain any Approval, (ii) any such ~~Purchaser is required to fulfill with respect~~ termination, default, acceleration or loss of benefit, or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the ~~transactions contemplated hereby~~failure to obtain any such Approval or any of the foregoing. For the avoidance of doubt, Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the applicable provisions of Section 2.10.

Appears in 1 contract

Samples: Asset Purchase Agreement (Post Holdings, Inc.)

Efforts. (a) ~~The~~ Subject to the terms and conditions of this Agreement, the Company and Parent shall ~~cooperate~~ each, and shall each cause their respective Affiliates to, use ~~commercially~~ their reasonable best efforts to take, or cause to be taken, all ~~appropriate action required of the Company,~~ actions and to ~~make~~do, or cause to be ~~made~~done, and to assist and cooperate with the other parties in doing, all things reasonably necessary under Applicable Law to consummate the Transactions, including (i) the obtaining of all necessary actions, waivers, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of such steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties and (iii) the execution and delivery of any additional instruments reasonably necessary to ~~be made by~~ consummate the Merger and to fully carry out the purposes of this Agreement. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.11, each of Parent shall (and shall cause its Affiliates to) and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as practicable (but in no event later than five (5) Business Days from the date of this Agreement for the filing of any notification and report forms and related material required under ~~applicable laws and regulations to consummate and make effective~~ the ~~transactions contemplated~~ HSR Act except by ~~this Agreement~~mutual consent confirmed in writing), including, without limitation, commercially reasonable efforts to (i) obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company required to be obtained by the Company, and (ii) defend against and respond to any action, suit, proceeding or investigation against the Company relating to the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions the Company is required to fulfill with respect to the transactions contemplated hereby. (b) Each Purchaser shall cooperate and use commercially reasonable efforts to take, provide or cause to be ~~taken~~provided as promptly as practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act and (iii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC as promptly as practicable, ~~all appropriate action required~~ including to cause to be lifted any restraint, injunction or other legal impediment to the Merger. (c) Subject to Applicable Law relating to the exchange of ~~each such Purchaser~~information, the Company and Parent and their respective counsel shall (i) have the right to review in advance, and to ~~make~~the extent practicable each shall consult the other on, any material filing made with, or ~~cause~~ written materials to be ~~made~~submitted to, ~~all filings required~~ any Governmental Authority in connection with the Transactions, or (ii) inform and consult with each other about, and provide each other with copies of, each material communication (and each other material correspondence or memoranda) promptly after receipt from, and as far as practicable in advance of delivery to, the DOJ or the FTC relating to ~~be made by~~ the Transactions. The Company and Parent shall provide the other party and its counsel with advance notice of and the opportunity to participate in any discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. Neither Parent nor the Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act without the prior written consent of the other. The Company and Parent may, as each ~~such Purchaser~~ deems advisable and necessary, ~~proper or advisable~~ reasonably designate any competitively sensitive material provided to the other under ~~applicable laws~~ this Section 6.11 as “Antitrust Counsel Only Material.” (d) Subject to the terms and ~~regulations to consummate and make effective the transactions contemplated by~~ conditions of this Agreement, ~~including~~Parent shall have, ~~without limitation~~except where prohibited by Applicable Law, ~~commercially reasonable efforts~~ responsibility for determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating to antitrust matters in consultation with the Company. To the extent required to permit the conditions to the Offer to be satisfied in advance of the initial Offer Expiration Time, Parent shall (and shall cause its Affiliates to) agree (i) ~~obtain~~to divest, ~~prior~~ dispose of or hold separate all or a portion of the current or future businesses, assets, properties or rights of Parent, the Surviving Corporation or their respective Subsidiaries (or, in the case of Parent, its Affiliates), or (ii) to limit the ~~Closing Date~~ability of such entities to conduct their businesses or operate or own assets or properties; provided, ~~all licenses~~however, ~~permits~~that, ~~consents, approvals, authorizations, qualifications and orders~~ in the case of ~~governmental authorities and parties to contracts with each such Purchaser required to be obtained by each such Purchaser~~ clauses (i) and (ii~~) defend against and respond to~~ ), Parent may provide that the closing of any ~~action, suit, proceeding~~ such transaction or ~~investigation against each~~ the effectiveness of any such ~~Purchaser relating to~~ limitation shall be conditioned on the transactions contemplated by this Agreement, in each case as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions each such Purchaser is required to fulfill with respect to the transactions contemplated herebyClosing.

Appears in 1 contract

Samples: Merger Agreement (Higher One Holdings, Inc.)

Common use of Efforts Clause in Contracts