Common use of FTC Approval Clause in Contracts

FTC Approval. All terms and conditions of this Agreement shall be subject to FTC approval and the substitution or addition of such modified or other terms and conditions as the FTC may require. (a) Each party hereto agrees to accept such changes to this Agreement as shall be required by the FTC and to execute promptly an appropriate amendment to this Agreement and to modify this Agreement to reflect such required changes (such amendment and such modification, together, an “Amendment”), unless (A) such changes would have, in the aggregate, an ACBR Material Adverse Effect, in which case the parties hereto shall not be required to execute an Amendment, or (B) if the FTC requests or requires any change to this Agreement that would adversely affect the economics of the transactions contemplated by this Agreement, in which case the party whose economics would be adversely affected (the “Affected Party”) may elect not to execute an Amendment, and, in the case of each of clauses (A) and (B), the parties hereto shall take the actions set forth in clause (b) below. (b) If (x) the FTC requires any changes that would have, in the aggregate, an ACBR Material Adverse Effect or (y) if the Affected Party elects not to execute an Amendment pursuant to the preceding clause (b), then the parties hereto shall, in good faith, use their respective best efforts to reach prompt (but in any event within seven days after receiving the FTC’s request to make the required changes) mutual agreement with respect to such changes, including, without limitation, to adjust the Purchase Price to offset the adverse economics to the extent that the Affected Party recognizes an equivalent benefit through such change. If the parties hereto, after complying with the preceding sentence, are unable to reach mutual agreement with respect to such changes within such seven day period, then (A) in the case of the preceding clause (x), either party may elect to terminate this Agreement pursuant to Section 8.1(a)(ii), and (B) in the case of the preceding clause (y), the parties shall submit the matters that the parties have been unable to resolve with respect to such changes to an independent nationally recognized investment banking firm, independent nationally recognized accounting firm or other independent arbitrator (“Arbitrator”) mutually agreed upon by Seller and Buyer for final and binding resolution of such dispute in accordance with procedures mutually agreed upon by Seller and Buyer. If Buyer and Seller are unable to agree on an Arbitrator, then Buyer and Seller shall each select such an Arbitrator and the two Arbitrators so selected shall select a third Arbitrator. The findings of the Arbitrator so selected by Buyer and Seller (or, if Buyer and Seller are unable to agree on an Arbitrator, so selected by the Arbitrators pursuant to the foregoing sentence) shall be final and binding on all of the parties hereto, and the fees and expenses of the Arbitrator(s) shall be paid by one-half by Seller and one-half by Buyer.

FTC Approval. All Subject to this Section 8.18, all terms and conditions of this Agreement shall be subject to FTC approval and the substitution or addition of such modified or other terms and conditions as the FTC may require. (a) Each party hereto agrees to accept such changes to this Agreement as shall be required by the FTC and to negotiate in good faith and execute promptly an appropriate amendment to this Agreement and to modify this Agreement to reflect such required changes (such amendment and such modification, together, an “Amendment”), unless (Ai) such changes would reasonably be expected to have, in the aggregate, an ACBR a Company Material Adverse Effect or a Buyer Material Adverse Effect, (ii) as a result of such changes, either party requires a change in which case the parties hereto shall not be required to execute an AmendmentPurchase Price, or (Biii) if the FTC requests or requires any change to this Agreement that such changes would adversely affect the economics of the transactions contemplated by this AgreementAgreement (other than as a result of either party’s requirement of a change in the Purchase Price, which shall be subject to Section 8.18(a)(ii)); provided, that in which the case of clauses (ii) and (iii), only the party who is not requiring the change in Purchase Price or whose economics would be adversely affected (the “Affected Party”) may elect not to execute an Amendment and may terminate this Agreement pursuant to Section 8.18(b) hereof. Prior to entering any Amendment, the parties shall use reasonable efforts to seek consultation with the FTC or its staff to review the Amendment in light of the requirements of the FTC giving rise to such Amendment. (b) If either party elects not to execute an Amendment pursuant to Section 8.18(a)(i) or the Affected Party elects not to execute an Amendment pursuant to Section 8.18(a)(ii) or (iii), either party may terminate this Agreement and, upon such termination, the Deposit, together with any interest earned thereon, shall be paid to Buyer; provided, that in the case of each of clauses (A) and (BSection 8.18(a)(iii), the parties hereto shall take the actions set forth in clause (bSection 8.18(c) belowbelow prior to any termination of this Agreement pursuant to this Section 8.18(b). (bc) If (x) the FTC requires any changes that would have, in the aggregate, an ACBR Material Adverse Effect or (y) if the Affected Party elects not to execute an Amendment pursuant to the preceding clause (bSection 8.18(a)(iii), then the parties hereto shall, in good faith, use their respective best commercially reasonable efforts to reach prompt (but in any event within seven days ten (10) Business Days after receiving the FTC’s request to make the required changes) mutual agreement with respect to an Amendment reflecting such changes, including, without limitation, to adjust the Purchase Price to offset the adverse economics to the extent that the Affected Party recognizes an equivalent benefit through such change. If the parties hereto, after complying with the preceding sentence, sentence are unable to reach mutual agreement with respect to such changes an Amendment within such seven day ten (10) Business Day period, then (A) in the case of the preceding clause (x), either party may elect to terminate this Agreement pursuant to Section 8.1(a)(ii), and (B) in the case of the preceding clause (y), the parties shall submit the matters that the parties have been unable to resolve with respect to such Amendment, including, without limitation, economic accommodations arising from or related to the changes required by the FTC, but excluding changes to the Purchase Price, to an independent nationally recognized investment banking firm, independent nationally recognized accounting firm or other independent arbitrator (“Arbitrator”) mutually agreed upon by Seller Parent and Buyer for final and binding resolution of such dispute in accordance with procedures mutually agreed upon by Seller Parent and Buyer. If Parent and Buyer and Seller are unable to agree on an Arbitrator, then Parent and Buyer and Seller shall each select such an Arbitrator Arbitrator, and the two Arbitrators so selected shall select a third ArbitratorArbitrator to be the Arbitrator with respect to the unresolved matters with respect to such Amendment. The Subject to the last sentence of this Section 8.18(c), the findings of the Arbitrator so selected by Parent and Buyer and Seller (or, if Parent and Buyer and Seller are unable to agree on an Arbitrator, so selected by the Arbitrators pursuant to the foregoing sentence) shall be final and binding on all of the parties hereto, and the fees and expenses of the Arbitrator(s) shall be paid by one-half by Seller Parent and one-half by Buyer. In the event that the findings of the Arbitrator include a change to the Purchase Price or changes that cause either party to require a change to the Purchase Price, the party who is not requiring the change in Purchase Price or whose economics would be adversely affected may elect not to execute an Amendment and terminate this Agreement, and, upon such termination, the Deposit, together with any interest earned thereon, shall be paid to Buyer.

FTC Approval. All terms and conditions of this Agreement and the Securities Purchase Agreement shall be subject to FTC approval and the substitution or addition of such modified or other terms and conditions as the FTC may require. (ai) Each party hereto agrees to accept such changes to this Agreement and the Securities Purchase Agreement as shall be required by the FTC and to execute promptly an appropriate amendment to this Agreement and to modify this the Securities Purchase Agreement to reflect such required changes (such amendment and such modification, together, an “Amendment”), unless (A) such changes would have, in the aggregate, an ACBR Material Adverse Effect, in which case the parties hereto shall not be required to execute an Amendment, or (B) if the FTC requests or requires any change to this Agreement or the Securities Purchase Agreement that would adversely affect the economics of the transactions contemplated by this Agreement and the Securities Purchase Agreement, in which case the party whose economics would be adversely affected (the “Affected Party”) may elect not to execute an Amendment, and, in the case of each of clauses (A) and (B), the parties hereto shall take the actions set forth in clause (bii) below. (bii) If (x) the FTC requires any changes that would have, in the aggregate, an ACBR Material Adverse Effect or (y) if the Affected Party elects not to execute an Amendment pursuant to the preceding clause (bi), then the parties hereto shall, in good faith, use their respective best efforts to reach prompt (but in any event within seven days after receiving the FTC’s request to make the required changes) mutual agreement with respect to such changes, including, without limitation, to adjust the Purchase Price to offset the adverse economics to the extent that the Affected Party recognizes an equivalent benefit through such change. If the parties hereto, after complying with the preceding sentence, are unable to reach mutual agreement with respect to such changes within such seven day period, then (A) in the case of the preceding clause (x), either party may elect to terminate this Agreement pursuant to Section 8.1(a)(iiParagraph 8(a)(i)(y), and (B) in the case of the preceding clause (y), the parties shall submit the matters that the parties have been unable to resolve with respect to such changes to an independent nationally recognized investment banking firm, independent nationally recognized accounting firm or other independent arbitrator (“Arbitrator”) mutually agreed upon by Seller Penn and Buyer for final and binding resolution of such dispute in accordance with procedures mutually agreed upon by Seller Penn and Buyer. If Buyer and Seller Penn are unable to agree on an Arbitrator, then Buyer and Seller Penn shall each select such an Arbitrator and the two Arbitrators so selected shall select a third Arbitrator. The findings of the Arbitrator so selected by Buyer and Seller Penn (or, if Buyer and Seller Penn are unable to agree on an Arbitrator, so selected by the Arbitrators pursuant to the foregoing sentence) shall be final and binding on all of the parties hereto, and the fees and expenses of the Arbitrator(s) shall be paid by one-half by Seller Penn and one-half by Buyer.

FTC Approval. All (a) Each of the parties acknowledges and agrees that all terms and conditions of this Agreement shall be subject to FTC approval and Approval and, subject to this Section 4.25, may be subject to the substitution or addition of such modified or other terms and conditions as the FTC may require. (a) . Each party hereto agrees that it shall use reasonable best efforts to accept such keep the other parties reasonably informed with respect to discussions with the FTC regarding potential modifications, substitutions or changes to this Agreement as shall be required by the FTC and to use reasonable best efforts to provide the other a reasonable opportunity to discuss with the FTC or its staff proposed changes to this Agreement, if any, in connection with the process for seeking FTC Approval. Each party hereto agrees that it shall negotiate in good faith and execute promptly an appropriate amendment to this Agreement and to modify this Agreement to reflect such required changes (such amendment and such modification, together, an “Amendment”), unless (Ai) TRWH or the Buyers determine in good faith that such changes would havecould reasonably be expected to be, in the aggregate, an ACBR Material Adverse Effectmaterial and adverse to the Companies or any of them following the Closing, (ii) such changes would require a change in which case the parties hereto shall not be required to execute an AmendmentBase Purchase Price, or (Biii) if the FTC requests or requires any change to this Agreement a party determines in good faith that such changes would adversely affect the economics of the transactions contemplated by this AgreementAgreement (other than as a result of either party’s requirement of a change in the Base Purchase Price, which shall be subject to clause (ii)); provided, that (A) only the parties who would suffer the material and adverse consequences (in which the case the party of clause (i)) or whose economics would be adversely affected (in the case of clauses (ii) and (iii)) (the “Affected Party”) may elect not to execute an Amendment, and, in the case of each of clauses (AAmendment and may terminate this Agreement pursuant to Section 4.25(b) hereof and (B), ) this Section 4.25 shall not impose any obligation on the parties hereto shall take Buyers or TRWH in respect of the actions set forth in clause (b) belowTRWH Regulatory Limitation. (b) If (x) the FTC requires any changes that would have, in the aggregate, an ACBR Material Adverse Effect or (y) if the Affected Party elects not to execute an Amendment pursuant Amendment, or if the FTC requests an amendment to the preceding clause (b), then TRWH Regulatory Limitation to which TRWH and the parties hereto shall, Buyers do not consent in good faith, use their respective best efforts to reach prompt (but in any event within seven days after receiving the FTC’s request to make the required changes) mutual agreement with respect to such changes, including, without limitation, to adjust the Purchase Price to offset the adverse economics to the extent that the Affected Party recognizes an equivalent benefit through such change. If the parties hereto, after complying with the preceding sentence, are unable to reach mutual agreement with respect to such changes within such seven day period, then (A) in the case of the preceding clause (x)sole discretion, either party may elect to terminate this Agreement pursuant to Section 8.1(a)(ii6.1(h), and (B) in the case of the preceding clause (y), the parties shall submit the matters that the parties have been unable to resolve with respect to such changes to an independent nationally recognized investment banking firm, independent nationally recognized accounting firm or other independent arbitrator (“Arbitrator”) mutually agreed upon by Seller and Buyer for final and binding resolution of such dispute in accordance with procedures mutually agreed upon by Seller and Buyer. If Buyer and Seller are unable to agree on an Arbitrator, then Buyer and Seller shall each select such an Arbitrator and the two Arbitrators so selected shall select a third Arbitrator. The findings of the Arbitrator so selected by Buyer and Seller (or, if Buyer and Seller are unable to agree on an Arbitrator, so selected by the Arbitrators pursuant to the foregoing sentence) shall be final and binding on all of the parties hereto, and the fees and expenses of the Arbitrator(s) shall be paid by one-half by Seller and one-half by Buyer.