Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoing, the parties hereto agree to (i)(A) 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 of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use 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 as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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. (b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.
Appears in 3 contracts
Samples: Merger Agreement (Wyndham Hotels & Resorts, Inc.), Merger Agreement (La Quinta Holdings Inc.), Merger Agreement (Wyndham Worldwide Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will Party shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the MergerOffer, the Distribution Merger and the other transactions contemplated by this Agreement and by or before the Spin-Off Transaction Agreements, including using its reasonable best efforts Outside Date. Notwithstanding anything in this Agreement to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto Parties agree to, or to cause their ultimate parent entity (i)(Aas such term is defined in the HSR Act) to, (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable (and in any event prior to the expiration of any applicable legal deadline (provided that the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of this Agreement), and (Bii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use or any other applicable Antitrust Law. Parent shall, with the prompt reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods under the HSR Act as soon as practicableCompany, and (ii) use reasonable best efforts to take, be responsible for making any filing or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper notification required or advisable under applicable Law the German and Austrian Antitrust Laws within fifteen (15) Business Days after the date hereof, unless otherwise agreed to obtain all other required waivers, consents by the Company and approvals from Governmental EntitiesParent in writing. The parties will Parties shall also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties Parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any party hereto such Party in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto Parties agree (A) to give each other reasonable advance notice of all substantive meetings with any Governmental Entity relating to any Antitrust LawsLaws applicable to the Offer and the Merger, (B) to the extent permitted unless prohibited by such applicable Law or by a Governmental Entity, to give each other an opportunity to participate in each of such meetingsmeetings or calls, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust LawsLaws applicable to the Offer and the Merger, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust LawsLaws applicable to the Offer and the Merger, to promptly notify the other party Party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions opinions, and proposals) with a Governmental Entity regarding any Antitrust Laws applicable to the Offer and the Merger, and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any Laws applicable to the Offer and the Merger; provided, however, that the Parties shall be permitted to redact any materials (x) to remove references concerning the valuation of the Company, (y) as necessary to comply with contractual arrangements or applicable Law, and (z) as necessary to address reasonable attorney-client privilege concerns; provided, further, that any such disclosures or provision of copies by one party Party to the other may be made on an outside counsel basis only basis, if appropriate. Parent, after prior consultation with the Company, shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary clearances under the Antitrust Laws and shall take the lead in all meetings and communications with any Governmental Entity in connection therewith.
(b) Parent shall use reasonable best efforts to, and shall cause each of its Subsidiaries and Affiliates to use their reasonable best efforts to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Entity, in each case, to cause the Merger to occur prior to the Outside Date; provided, however, that, notwithstanding this Section 6.6(b) or anything to the contrary in this Agreement, Parent shall not have any obligation to (or to cause any of its Subsidiaries or Affiliates or the Company to) offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (1) the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of the Parent and its Subsidiaries (including the Company, Surviving Corporation and their respective Subsidiaries), or (2) any other restrictions on the activities of Parent and its Subsidiaries (including the Company, Surviving Corporation and their respective Subsidiaries), other than, in each case, to the extent necessary to obtain the required approvals or clearances under the applicable Antitrust Laws required to consummate the Merger, such actions that would not, and would not reasonably be expected to, individually or in the aggregate, materially and adversely affect the business of the Company, Surviving Corporation and their respective Subsidiaries. Nothing in this Section 5.7(a) Agreement shall require the Company or its Subsidiaries any party to take or agree to take any action with respect to its business or operations in connection with obtaining required approval or clearance under any applicable Antitrust Laws unless the effectiveness of such agreement or action is conditioned upon the Closing.
(c) Without limiting the obligations in clauses (a) and (b) In furtherance and not of this Section 6.6, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable a Governmental Entity challenging the Offer or the Merger, each of Parent, Purchaser and the Company shall cooperate in all respects with each other and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated hereby Offer or the Merger.
(d) Prior to the Acceptance Time, the Company shall use its reasonable best efforts to obtain any consents, approvals, or waivers of third parties with respect to any Contracts to which it or a Subsidiary of the Company is a party as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay may be necessary for the consummation of the transactions contemplated herebyby this Agreement or required by the terms of any Contract as a result of the execution, each of Parentperformance, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement; provided that in no event will the Company or its Subsidiaries be required to pay, including in order prior to resolve such objections or suits whichthe Effective Time, in any case if not resolvedfee, could reasonably be expected to preventpenalty, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition ofconsideration or make any other accommodation to any third party to obtain any consent, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actionsapproval, or agree waiver required with respect to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentsuch Contract.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (TESARO, Inc.), Merger Agreement (TESARO, Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will shall, and shall cause its respective Subsidiaries to, use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to use commercially reasonable efforts to (i)(Ai) obtain or cause to be obtained, or make an appropriate filing or cause to be made, all required permits, licenses, registrations, certificates, authorizations, orders, exemptions, clearances, consents and approvals under applicable Antitrust Laws, Foreign Investments Laws and Healthcare Laws set forth on Schedule 5.8(a) of a Notification and Report Form pursuant to the HSR Act Company Disclosure Letter in connection with the Contemplated Transactions, in each case, as promptly as practicable (and in any event within prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the applicable filings (or draft filings where applicable) pursuant to the Regulatory Approvals set forth in Section 5.8(a) of the Company Disclosure Letter must be made as promptly as practicable after the date of this Agreement (and in no event later than ten (10) Business Days after the date of this Agreement)), and (Bii) supply make an appropriate response as promptly as practicable to any additional request for information and documentary material that may be requested made by a Governmental Body pursuant to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws. Parent shall, with the HSR Act and use reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the Company, be responsible for making any filing or notification required for the purposes of consents or approvals required under any applicable waiting periods Antitrust Laws or Foreign Investment Laws. The Company shall, with the reasonable cooperation of Parent, be responsible for making any filing or notification required for the purposes of the Regulatory Approvals required under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesHealthcare Laws. The parties will also hereto shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. , Foreign Investment Laws or Healthcare Laws.
(b) Without limiting the foregoing, the parties hereto agree agree, in each case in connection with the Merger or the other Contemplated Transactions (Ai) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, (Bii) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (Ciii) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, (Div) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, to promptly notify the other party parties of the substance of such communication, (Ev) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws, Foreign Investment Laws or Healthcare Laws and (Fvi) to provide each other with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws. Any such disclosures or provision of copies by one party to the other others may be redacted or made on an outside counsel basis basis, if and to the extent reasonably appropriate. Nothing .
(c) Notwithstanding anything in this Section 5.7(aAgreement to the contrary, Parent shall, and shall cause each of its Subsidiaries to, (i) take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws, and to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, (ii) use its commercially reasonable efforts to take any and all actions necessary to obtain any consents or approvals under Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, and the Regulatory Approvals, and (iii) use its commercially reasonable efforts to take any and all actions necessary to obtain any other consents, clearances, or approvals required in order to eliminate impediments under applicable Laws asserted by any Governmental Body, including in respect of any Laws, order, injunction or decree by any Governmental Body of competent jurisdiction that may be in effect that prohibits, enjoins, restricts, prevents or makes illegal the consummation of the Contemplated Transactions, in each case, to cause the Merger to occur as promptly as possible (provided that this clause (iii) shall require in no way include actions with respect to (x) Labor Consultations, (y) any Permit that the Company, as of the date of this Agreement, does not believe is required for the operation of the business of the Company and its Subsidiaries or (z) any Healthcare Laws, including (A) promptly complying with any required requests for additional information (including any second request or equivalent) by any Governmental Body, (B) if necessary to obtain clearance by any Governmental Body before the Outside Date, offering, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and (C) contesting, defending, and appealing any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking such actions to prevent the entry, enactment, or promulgation thereof; provided, that Parent and its Subsidiaries will not be required to take any of the actions contemplated by the foregoing clauses (B) or (C) as a condition by any Governmental Body to obtaining any consent or approval under Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, or any Regulatory Approval in the event that such action contemplated by such clauses would reasonably be expected to result in a material adverse effect on the business, condition (financial or otherwise), assets, operations, or results of operations of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), taken as a whole, following the Contemplated Transactions. Subject to the other provisions of this Agreement, including this Section 5.8, each party shall not, and shall cause each of its Subsidiaries to take not, take, any action or agree omit to take any action that would reasonably be expected to materially delay or prevent clearance by any Governmental Body or to make clearance by any Governmental Body before the Outside Date less probable in any material respect. Parent shall bear the filing fees incurred in connection with respect any filings in connection with any consents or approvals under Antitrust Laws, Healthcare Laws or Foreign Investments Laws in connection with the Contemplated Transactions, to its business or operations unless the effectiveness of such agreement or action is conditioned upon extent necessary, and the ClosingRegulatory Approvals.
(d) Without limiting the obligations in clauses (a), (b) In furtherance and not (c) of this Section 5.8, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyMerger, each of Parent, Merger Sub Sub, and the Company will shall cooperate in all respects with each other and shall use its commercially reasonable best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, 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 AgreementMerger.
(e) Prior to the Effective Time, including in order each party hereto shall use commercially reasonable efforts to resolve such objections deliver any notices to or suits whichobtain any consents, in approvals, or waivers of third parties with respect to any case if not resolved, could reasonably Contracts to which it is a party as may be expected to prevent, materially impede or materially delay necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Contemplated Transactions; provided that in no event will Parent, Merger Sub, the Company or any of their respective Subsidiaries be required to pay, prior to the other transactions contemplated herebyEffective Time, including sellingany fee, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the salepenalty, holding separate or other disposition ofconsideration or make any other accommodation to any third party to obtain any consent, approval or waiver required with respect to any of its assets such Contract. Notwithstanding the foregoing, except as required by applicable Law or an applicable Labor Agreement, the assets of its Subsidiaries or Company shall not consult with any Union regarding the conducting of its business in a manner Contemplated Transactions without obtaining Parent’s prior written consent (which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub consent shall not be obligated to take any actionsunreasonably withheld, conditioned or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiariesdelayed), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.
Appears in 3 contracts
Samples: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, and no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, impede or materially delay the Distribution and consummation of the other transactions contemplated by Transactions. Notwithstanding the foregoing, but subject to the provisions of the following sentences, nothing in this Agreement and the Spin-Off Transaction Agreementsshall require Parent, including using its reasonable best efforts to obtain all necessary actions Merger Sub I or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsMerger Sub II to, and no Acquired Company shall, without the prior written consent of Parent, agree to make all necessary registrations and filings and take all steps as may be necessary any material modification to obtain such required waiveror material accommodation under any Contract or pay any material fee, penalty or other consideration to any third party for any consent or approval from any Governmental Entityrequired for the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to make (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within twenty (and in any event within ten (1020) Business Days after from the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and including by requesting early termination of the waiting period provided for in the HSR Act, (ii) use reasonable best efforts to takeif required, or cause to be taken, all actions appropriate filings under any Regulatory Law as soon as reasonably practicable and to do, or cause to be done, all things (iii) any other necessary, proper or advisable registrations, filings and notices. Subject to applicable Law, and except as required by any Governmental Entity, neither Parent nor the Company shall agree to extend any waiting period under applicable the HSR Act or any other Regulatory Law without the prior written consent of the other party. Parent shall pay the filing fee for the Notification and Report Forms filed under the HSR Act and any other filings required pursuant to this Section 5.6(a).
(b) Without limiting Section 5.6(a), Parent agrees to, and will cause its Affiliates to, take any and all actions necessary to avoid, eliminate, and resolve any and all impediments under any Regulatory Law or trade regulation law that may be asserted by any Governmental Entity or any other Person with respect to the Transactions contemplated by this Agreement and to obtain all other required waiversconsents, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one anotherapprovals, and consider waivers under any Regulatory Law that may be required by any Governmental Entity to enable the parties to close the Transactions as promptly as reasonably practicable, including, (i) proposing, negotiating, committing to, and/or effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, transfer, license, disposition, or hold separate (through the establishment of a trust or otherwise) of such assets, properties, or businesses of Parent or its Subsidiaries or Affiliates or of the assets, properties, or businesses to be acquired pursuant to this Agreement as are required to be divested in good faith order to avoid the views entry of any decree, judgment, injunction (permanent or preliminary), or any other order that would make the Transactions unlawful or would otherwise materially delay or prevent the consummation of the Transactions, (ii) terminating, modifying, or assigning existing relationships, Contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) changing or modifying any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise taking or committing to take any other action that would limit Parent or its Subsidiaries or Affiliates’ freedom of action with respect to, or their ability to retain, one anotheror more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement; provided that Parent is not obligated to take any action contemplated in clause (i) through (iv) unless such action is conditioned upon the closing of the Transactions.
(c) In addition, if any action or proceeding is instituted (or threatened) challenging the Transactions as violating any Regulatory 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 Transactions illegal or otherwise delay or prohibit the consummation of the Transactions, Parent and its Affiliates and Subsidiaries shall take any and all actions to contest and defend any such claim, cause of action, or proceeding 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 Transaction.
(d) Each of Parent, Merger Sub I and Merger Sub II, on the one hand, and the Company, on the other hand, shall, in connection withwith the efforts referenced in Section 5.6(a), Section 5.6(b) and provide Section 5.6(c) to obtain all requisite approvals and authorizations for the Transactions under the HSR Act or any other parties Regulatory Law and to make any other necessary, proper, or advisable registrations, filings and notices, use its reasonable best efforts to (i) cooperate in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto all respects with each other in connection with proceedings under any filing or relating to submission and in connection with any Antitrust Laws. Without limiting investigation or other inquiry, including any Action initiated by a private party, (ii) promptly notify the foregoingother party of any substantive communication made or received by Parent or the Company, as the parties hereto agree (A) to give each other reasonable advance notice of all meetings with case may be, from any Governmental Entity relating and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions (iii) subject to applicable Law, permit the other party a reasonable opportunity to review any Antitrust Lawssubstantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or party, and (Biv) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify gives the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review attend or participate. Notwithstanding the foregoing, the Company and comment upon all written communications (including Parent may, as each deems advisable and necessary, reasonably designate any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party competitively sensitive material provided to the other may side under this Section 5.6(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be made on an given only to the outside counsel basis if appropriate. Nothing of the recipient and will not be disclosed by outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates unless express permission is obtained in this Section 5.7(a) shall require advance from the source of the materials (the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and as the Company will use case may be) or its reasonable best efforts to resolve any subject objections or suits so as to permit consummation legal counsel. Each of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their Parent shall cause its respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect counsel to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in comply with this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent5.6(d).
Appears in 2 contracts
Samples: Merger Agreement (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)
Further Action; Efforts. (a) Subject to Each Party shall (and, in the terms case of Parent, cause each of its subsidiaries and conditions of this Agreementcontrolled Affiliates (collectively, prior to the Effective Time, each party will “Parent Group”) to) use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws and regulations or pursuant to any contract or agreement to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and advisable (and in any event no later than the End Date) and consummate the Transactions as soon as reasonably practicable, including preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings, and to obtain as promptly as reasonably practicable (and in any event no later than the End Date) all actions or nonactions, waivers, consents, registrations, expirations or terminations of waiting periods, approvals, permits and authorizations necessary or advisable to be obtained from any third party or any Governmental Entity in order to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityTransactions expeditiously. In furtherance and not in limitation of the foregoing, each Party hereto agrees in the parties hereto agree event that a filing is required pursuant to (i)(A) the HSR Act with respect to the Transactions, to 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 following the date of this Agreement)hereof, and (B) to use its reasonable best efforts to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act any applicable Antitrust Law and to use its reasonable best efforts to take any and all other actions necessary, proper or advisable to cause the expiration or termination of the any applicable waiting periods under the HSR Act as soon as practicable. Parent will be solely responsible for and pay all filing fees payable to Governmental Entities under any Antitrust Law.
(b) Parent, on the one hand, and (ii) the Company, on the other hand, shall, in connection with the efforts and obligations referenced in Section 6.4(a), use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also (i) consult and cooperate in all respects with one anothereach 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; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information required for any application or other filing to be made by the other Party pursuant to any applicable Law in connection with the Transactions; (iii) promptly notify the other Party of any communication received by such Party from, or given by such Party to, any 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 and, subject to applicable Law, furnish the other Party promptly with copies of all correspondence, filings and communications between them and any Governmental Entity with respect to the Transactions; (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested by any Governmental Entity in respect of the Transactions; and (v) permit the other Party to review any communication given by it to, and consult with each other in advance, and consider in good faith the views of one another, other Party’s reasonable comments in connection with, and provide any filing, notice, application, submission, communication, meeting or conference with, any Governmental Entity 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 Entity in respect of any such filings, investigation or other inquiry without giving the other Parties sufficient prior notice of the meeting and, to the other parties extent permitted, the opportunity to attend and/or participate therein. Notwithstanding anything in advancethis Agreement to the contrary, any analysesbut without limiting each Party’s obligations under this Section 6.4, appearancesParent shall, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection the Parties, control and lead all communications and strategy for dealing with proceedings under or relating the applicable Governmental Entities with respect to any Antitrust LawsLaw that may be asserted by any Governmental Entity with respect to the Transactions, and Parent shall, on behalf of the Parties, control and lead the defense strategy for dealing with all Proceedings challenging the Transactions that are brought by any applicable Governmental Entity with respect to any Antitrust Law. Without limiting the foregoing, neither Parent nor any member of the parties hereto agree (A) to give each other reasonable advance notice of all meetings Parent Group shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity relating not to any Antitrust Lawsconsummate the Transactions, (B) to except with the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party prior written consent of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 ClosingCompany.
(bc) In Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the covenants foregoing, Parent shall, and shall cause each member of the parties contained in Section 5.7(a)Parent Group to, take any and all steps necessary, proper or advisable to (x) resolve, avoid, or eliminate impediments or objections, if any objections are any, that may be asserted with respect to the transactions contemplated hereby Transactions under any Antitrust Law or if (y) avoid the entry of, effect the dissolution of, and have vacated, modified, suspended, eliminated, lifted, reversed or overturned, any suit 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 End Date), including (A) proposing, negotiating, committing to, agreeing to and effecting, 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, or any interests therein, of the Company or its subsidiaries, (B) taking or agreeing to restrictions or actions that after the Effective Time would limit any Party’s or its controlled Affiliates’ 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, in each case, of the Company or its subsidiaries, or interests therein, or (C) agreeing to enter into, modify or terminate existing contractual relationships, and promptly effecting the sale, lease, license, divestiture and holding separate of, assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of the Company or its subsidiaries and the entry into agreements with, and submission to orders of, the relevant Governmental Entity giving effect thereto or to such restrictions or actions; provided, however, that nothing in this Agreement shall require (I) the Company or Parent to effectuate or agree to effectuate any such action unless it is conditioned upon the Closing and only effective following the Closing, or (II) Parent to effect or agree, commit or consent to any divestiture, hold separate order, limitation on conduct or any other remedial action with respect to impacting any assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses, or any interests therein, of Parent or any Person other than the Company or its subsidiaries, or interests therein.
(d) Subject to the obligations under Section 6.4(c), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Federal Trade Commission, the Antitrust Division of the Department of Justice Merger or any other applicable Transaction, or any other agreement contemplated hereby, (i) each of Parent and the Company shall, and Parent shall cause each member of the Parent Group to, cooperate in all respects with each other and use its respective best efforts to contest and resist any such action or proceeding 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, and (ii) Parent shall cause each member of the Parent Group, at Parent’s cost and expense, defend through litigation on the merits of any claim or action asserted in any court, agency or other proceeding by any Person or entity (including any Governmental Entity), whether judicial or administrative, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of, or otherwise in connection with, the Transactions. Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, none of the Company, any of its subsidiaries, nor any of their respective Representatives, shall be obligated to pay or commit to pay to any Person whose approval or consent is being solicited any cash or other consideration, agree to any term or make any accommodation or commitment or incur any liability or other obligation in connection with its obligations under this Section 6.4 that is not conditioned upon consummation of the Merger. Notwithstanding the foregoing, except as set forth in Article VII, obtaining any approval or consent from any Person pursuant to this Section 6.4 shall not be a condition to the obligations of the Parties to consummate the Transactions.
(e) Neither Parent nor Merger Sub, nor any member of the Parent Group shall, and Parent shall cause each member of the Parent Group not to, take any action, including acquiring or agreeing to acquire, including by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any Person, corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, properties or equity interests, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation or such other action could reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity challenging any of or private party necessary to consummate the transactions contemplated hereby as violative Transactions or the expiration or termination of any Antitrust Law applicable waiting period; (ii) materially increase the risk of any Governmental Entity or which would otherwise prevent, materially impede private party seeking or materially delay entering an order prohibiting the consummation of the transactions contemplated hereby, each Transactions; or (iii) materially increase the risk of Parent, Merger Sub and the Company will use its reasonable best efforts not being able to resolve remove any subject objections such order on appeal or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding otherwise.
(f) Notwithstanding anything to the contrary in this Section 5.76.4, Parent the Parties may, as they deem advisable and Merger Sub shall not be obligated to take any actionsnecessary, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco provide sensitive information and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect materials to the Parent Spinother Party on an outside counsel-only basis or directly to the applicable Governmental Entity, while, to the Merger and extent feasible, making a version in which the sensitive information has been redacted available to the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of ParentParty.
Appears in 2 contracts
Samples: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Further Action; Efforts. (a) Prior to the Effective Time, the Company shall use its commercially reasonable efforts to obtain any consents, approvals or waivers of third parties with respect to any Company Material Contracts to which the Company or any of the Company Subsidiaries is a party as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Transactions. Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will of the Company, Parent and Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, the Distribution including, (i) making all appropriate filings and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations submissions (and filings and take all steps as may submissions considered by Parent to be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoing, the parties hereto agree to (i)(Aadvisable) make an appropriate filing of a Notification and Report Form pursuant to under the HSR Act and with any other Governmental Authority pursuant to any other applicable Antitrust Laws or otherwise as determined by Parent, as promptly as practicable (and practicable, but in any no event within later than ten (10) Business Days after the date of this Agreement)hereof with respect to filing under the HSR Act, and (B) supply shall make as promptly as practicable any additional information and documentary material that may be requested pursuant to other appropriate submissions under other applicable Antitrust Laws, (ii) obtaining as promptly as practicable the termination of any waiting period under the HSR Act and use reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the any applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any foreign Antitrust Laws, (iii) cooperating and consulting with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Authorities 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 making all such filings and timely seeking all such consents, approvals, permits, notices or authorizations.
(b) In connection with the efforts referenced in Section 7.07(a) and subject to applicable Law, each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, together with their respective counsel will (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party reasonably informed of any communication 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 the Transactions and (iii) permit the other party to review any communication given by it to, and consult with each other in advance of any 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 EntityAuthority or other Person, to give each the other an party the opportunity to attend and participate in each of such meetingsmeetings and conferences. Neither Parent, (C) Merger Sub nor the Company shall commit to the extent practicable, to give each other reasonable advance notice of all substantive oral communications or agree with any Governmental Entity relating Authority to stay, toll or extend any applicable waiting period under the HSR Act or applicable Antitrust Laws, (D) if without the prior written consent of the other. The Company, Parent, and Merger Sub may, as each deems advisable and necessary, reasonably designate any Governmental Entity initiates a substantive oral communication regarding any Antitrust Lawscompetitively sensitive material provided to the other under this Section 7.07 as “Outside Counsel Only Material.” Notwithstanding anything to the contrary in this Section 7.07, materials provided to promptly notify the other party or its counsel may be redacted to remove references concerning the valuation of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review Company and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 ClosingSubsidiaries.
(bc) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a7.07(a) and Section 7.07(b), if any objections are asserted with respect to the transactions contemplated hereby Transactions under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade CommissionFTC, the Antitrust Division of the Department of Justice DOJ or any other applicable Governmental Entity Authority or any private party challenging any of the transactions contemplated hereby Transactions as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyTransactions, each of Parent, Merger Sub and the Company will shall use its commercially reasonable best efforts to resolve any subject such objections or suits so as to permit consummation of the transactions contemplated by this AgreementTransactions, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions.
(d) 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 Merger or any other Transaction, each of Parent, Merger Sub and the Company shall cooperate in all respects with each other transactions contemplated herebyand use its respective commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, including sellinglifted, holding 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. Parent shall be entitled to direct the antitrust defense of the Merger or any other Transactions, or negotiations with, any Governmental Authority or other Person relating to the Merger or regulatory filings under applicable Antitrust Law, subject to the provisions of Sections 7.07(a), (b), (c) and (e). The Company 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 proposed settlement, consent decree, commitment or remedy, or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested by or agreed with Parent. The Company shall use its commercially reasonable efforts to provide full and effective support of Parent in all material respects in all such negotiations and discussions to the extent requested by Parent.
(e) Notwithstanding the foregoing or any other provision of this Agreement, (i) nothing in this Section 7.07 shall limit a party’s right to terminate this Agreement pursuant to Section 9.01 and (ii) nothing in this Agreement shall obligate Parent, Merger Sub or any of their respective Affiliates to agree to (and none of the Company or any Company Subsidiary shall, without the prior written consent of Parent) (A) sell, hold separate or otherwise disposing dispose of all or conducting a portion of its respective business, assets or properties, or conduct its business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to any Contract any material accommodation, (C) limit in any manner which would resolve whatsoever the ability of such objections entities to conduct, own, operate or suits or permitting the sale, holding separate or other disposition of, control any of its their respective businesses, assets or properties or of the businesses, properties or assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco Company and the Company and their respective Subsidiaries or (including D) waive any of the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by conditions set forth in Article VIII of this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Texas Instruments Inc), Merger Agreement (National Semiconductor Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will, and will cause its respective Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as practicable and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to, or to cause their ultimate parent entity (i)(A) make an appropriate filing of a Notification and Report Form pursuant to as such term is defined in the HSR Act Act) to, (i) cooperate with each other to make any filing or notification required or advisable under any Antitrust Laws or Foreign Investment Laws as promptly as practicable (and in any event within ten (10) Business Days after prior to the date expiration of this Agreement)any applicable legal deadline, and (Bii) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other actions necessary, proper any Antitrust Law or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesForeign Investment Law. The parties also will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws or Foreign Investment Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws, (D) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws or Foreign Investment Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws or Foreign Investment Laws and (F) to provide each other with copies of all material written communications to or from any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis only basis, if appropriatedeemed advisable and necessary by that party. Nothing in this Section 5.7(a) shall require Such materials and the Company information contained therein will be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or its Subsidiaries to take or agree to take any action with respect to its business or operations unless directors of the effectiveness recipient without the advance written consent of the party providing such agreement or action is conditioned upon the Closingmaterials.
(b) In furtherance Notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause each of its Subsidiaries and Affiliates to, take such actions as may be reasonably necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws or Foreign Investment Laws to enable all waiting periods under applicable Antitrust Laws or Foreign Investment Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws or Foreign Investment Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possible and, in any event, by or before the Outside Date, including promptly complying with any requests for additional information (including any second request) by any Governmental Body; provided, however, that Parent, its Subsidiaries and Affiliates shall not in limitation be required to (i) offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the covenants capital stock, assets, equity holdings, rights, products, or businesses of Parent or any of its Subsidiaries or Affiliates (including the parties contained in Section 5.7(aSurviving Corporation and its Subsidiaries), if nor any objections are asserted other restrictions on the activities of Parent, any of its Subsidiaries or Affiliates (including the Surviving Corporation and its Subsidiaries), and (ii) contest, defend, or appeal any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof. For the avoidance of doubt, Parent shall not be required to hold separate, sell, divest, license or agree to any other disposition with respect to any operations, divisions, businesses, product lines, customers, assets or relationships of Parent or any of its Affiliates (other than the transactions contemplated hereby Company, the Surviving Corporation and their Subsidiaries). Parent shall bear the expenses and costs incurred by the parties in connection with any filings or other such actions that may be required to obtain clearance under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Foreign Investment Law or which would otherwise prevent, materially impede or materially delay for the consummation of the transactions contemplated herebyMerger, in each case, after the initial filing in each jurisdiction.
(c) Prior to the Effective Time, each of Parent, Merger Sub and the Company party will use its commercially reasonable best efforts to resolve obtain any subject objections consents, approvals, or suits so waivers of third parties with respect to any Contracts to which it is a party as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably may be expected to prevent, materially impede or materially delay necessary for the consummation of the Merger Contemplated Transactions or required by the other transactions contemplated herebyterms of any Contract as a result of the execution, including sellingperformance, holding separate or otherwise disposing consummation of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DateContemplated Transactions; provided, however, that, notwithstanding anything in no event will either party or its respective Subsidiaries be required to pay, prior to the contrary in this Section 5.7Effective Time, Parent and Merger Sub shall not be obligated to take any actionsfee, penalty, or agree other consideration or make any other accommodation to refrain from taking any actionsthird party to obtain any consent, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any actionapproval, or agree waiver required with respect to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentsuch Contract.
Appears in 2 contracts
Samples: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable (including under any Antitrust Law) to consummate the transactions contemplated hereby as soon as practicable and (ii) do all things necessary, proper or advisable under applicable Applicable Law and regulations to consummate the Merger, the Distribution Merger and the other transactions contemplated by this Agreement hereby at the earliest practicable date, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the Spin-Off Transaction Agreementstaking of such actions as are necessary to obtain any requisite approval, consent or expiration of any applicable waiting period (including under the HSR Act, the EU Merger Regulation or any other Antitrust Law) and duly make all notifications and other filings required under the HSR Act, the EU Merger Regulation or any other Antitrust Law and; (B) using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including resolve any required action or non-action objection asserted with respect to the transactions contemplated hereby under any Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from Law raised by any Governmental Entity. .
(b) In furtherance and not in limitation of the foregoingprovisions of Section 6.7(a), each of the parties hereto agree parties, as applicable, agrees to (i)(A) make prepare and file as promptly as practicable 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 of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested other appropriate filings pursuant to the HSR Act and use reasonable best efforts to take all EU Merger Regulation or any other actions necessary, proper or advisable to cause the expiration or termination Antitrust Law. Each of the applicable waiting periods Company and Parent shall bear its respective expenses, charges and filing fees associated with the filings by the Company and Parent required under the HSR Act as soon as practicableAct, and the EU Merger Regulation or any other Antitrust Law.
(iic) use reasonable best efforts If a party receives a request for information or documentary material from any Governmental Entity with respect to takethis Agreement or any of the transactions contemplated hereby then such party shall in good faith make, or cause to be takenmade, all actions as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of the status of matters relating to dothe completion of the transactions contemplated hereby and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, or cause including:
(i) cooperating with each other in connection with filings required to be done, made by any party under any Antitrust Law and liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from communications with such Governmental Entities. The parties In particular, to the extent permitted by law or Governmental Entity, no party will also consult make any notification in relation to the transactions contemplated hereby without first providing the other party with a copy of such notification in draft form and cooperate giving such other party a reasonable opportunity to discuss its content before it is filed with one anotherthe relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in good faith the views of one another, in connection with, and provide this respect;
(ii) furnishing to the other parties party all information within its possession that is required for any application or other filing to be made by the other party pursuant to Applicable Law in advance, connection with the transactions contemplated hereby;
(iii) promptly notifying each other of any communications from or with any Governmental Entity with respect to the transactions contemplated hereby;
(iv) consulting and cooperating with one another in connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the Antitrust Law; and
(v) without prejudice to any Antitrust Laws. Without limiting the foregoing, rights of the parties hereto agree (A) hereunder, and subject to give each Section 6.7(e)(iv), consulting and cooperating in all respects with the other reasonable advance notice of in defending all meetings with lawsuits and other proceedings by or before any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to challenging this Agreement or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding .
(e) Notwithstanding anything to the contrary herein, nothing in this Section 5.76.7 shall require either Parent or any of its subsidiaries to: (i) agree to or to effect any divestiture of, Parent and Merger Sub shall not be obligated to take any actionsor hold separate (including by establishing a trust or otherwise), or agree to refrain from taking restrict its ownership or operation of, any actions, that, collectively, would have a material adverse effect on the combined business or assets of the Company or its subsidiaries or of Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries)or its subsidiaries, taken as a whole, after giving effect or to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take enter into any actionsettlement or consent decree, or agree to refrain from taking any actionundertaking, pursuant with respect to this Section 5.7(bany business or assets of the Company or its subsidiaries or of Parent or its subsidiaries, (ii) without enter into, amend or agree to enter into or amend, any contracts or agreements of the express written permission Company or its subsidiaries or of Parent or its subsidiaries, (iii) otherwise waive, abandon or alter any material rights or obligations of the Company or its subsidiaries or of Parent or its subsidiaries or (iv) file or defend any lawsuit, appeal any judgment or contest any injunction issued in a proceeding initiated by a Governmental Entity, except in the case of clauses (i), (ii) and (iii), that Parent shall be obligated to commit to and undertake, if necessary, to a sale, divestiture, other conveyance, license or hold separate arrangement of assets that contributed up to 10% of the Company and its subsidiaries’ consolidated earnings before interest and taxes for the 12-month period ended June 30, 2012 (a “Required Divestiture” ). Parent’s obligations with respect to any Required Divestiture shall be unconditional and not qualified by reasonable best efforts and no actions taken with respect to any Required Divestiture shall be considered for purposes of determining whether a Material Adverse Effect has occurred.
Appears in 2 contracts
Samples: Merger Agreement (Brightpoint Inc), Merger Agreement (Ingram Micro Inc)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain including: (i) obtaining all necessary actions or non-actions, waivers, consents consents, qualifications and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, Entities and to make making all necessary registrations and registrations, filings and take notifications and taking all reasonable steps as may be necessary to obtain such required waiveran approval, clearance, non-action letter, waiver or exemption from any Governmental Entity (including under the HSR Act and the Requisite Regulatory Approvals); (ii) obtaining all necessary consents, qualifications, approvals, waivers or exemptions from non-governmental third parties; (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, but excluding any lawsuits or other legal proceedings brought by or against any Insurance Regulator; and (iv) executing and delivering any additional documents or instruments necessary to consummate the Transactions and to carry out this Agreement (it being acknowledged and agreed that no Parent Company shall be obligated to, and no Acquired Company shall, without the prior written consent of Parent (which consent shall be in the sole discretion of Parent), in connection with the actions contemplated by the foregoing clauses (ii) and (iv), agree to any modification to or accommodation under any Contract or pay any fee, penalty or other consideration to any third party for or relating to any consent or approval from any Governmental Entityrequired for the consummation of the Transactions). In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to (i)(A) make, if required, appropriate filings and registrations under applicable Regulatory Laws and Insurance Laws. Each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within a reasonable time period not to exceed fifteen (and in any event within ten (1015) Business Days days after the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts including by requesting early termination of the waiting period provided for in the HSR Act. Each party hereto agrees to takemake appropriate filings of Applications for Approval of Acquisition of Control Statements, or cause “Form A” statements, and all related filings, with respect to be takenthe Transactions with the applicable Insurance Regulators, all actions as applicable, as soon as practicable after the date hereof and to do, or cause supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be reasonably requested by any Insurance Regulator pursuant to be done, the Insurance Laws and to take all things other commercially reasonable actions necessary, proper or advisable under applicable Law to obtain all other required waivers, the applicable consents and approvals from of the applicable Insurance Regulators as soon as practicable.
(b) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with and without limiting the obligations to use certain efforts referenced in Section 5.7(a), to the extent relating to the requisite approvals, authorizations and clearances for the Transactions under the HSR Act and the other Regulatory Laws and the Insurance Laws, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) keep the other reasonably informed of any communication 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”), any Insurance Regulator or any other Governmental EntitiesEntity and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions, (iii) permit the other a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting, discussion or conference with, the FTC, the DOJ, any Insurance Regulator or any other Governmental Entity or, in connection with any Action by a private party, with any other Person, and, to the extent permitted by the FTC, the DOJ, such Insurance Regulator or such other applicable Governmental Entity or other Person, as applicable, give the other the reasonable opportunity to attend and participate in such meetings, discussions and conferences and (iv) to the extent practicable and subject to the other provisions in this Section 5.7, attempt to confer in good faith in order to (A) exchange and review respective views and positions with the other as to potential Materially Burdensome Conditions and (B) discuss and present to, and engage with, the applicable Governmental Entity regarding any approaches or actions that could mitigate the scope or impact of a potential Materially Burdensome Condition so that it does not become a Materially Burdensome Condition. Parent and the Company shall promptly advise each other upon receiving any communication, including promptly furnishing each other copies of any written or electronic communication, and shall promptly advise each other when any such communication causes such party to believe that there is a reasonable likelihood that any requisite approval, authorization or clearance for the Transactions under the HSR Act or any Requisite Regulatory Approval will not be obtained or that the receipt of any such approval, authorization or clearance or Requisite Regulatory Approval will be materially delayed or conditioned or impose or require a Materially Burdensome Condition. The parties hereto will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto hereto, including reasonable access to any materials submitted in connection with any proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice HSR Act or any other applicable Governmental Entity challenging Regulatory Law, including any proceeding under 16 C.F.R. § 803.20. Notwithstanding the foregoing, (A) Parent shall have final approval over all matters pertaining to any Action, meeting, discussion, conference or response in connection with the HSR Act and any Requisite Regulatory Approval and (B) the Company and Parent may, as each deems advisable and necessary (after consultation with the Company’s or Parent’s outside legal counsel, as applicable), reasonably designate any competitively sensitive material provided to the other side under this Section 5.7(b) as Competitively Sensitive Information (as defined in the Confidentiality Agreement (for the avoidance of doubt, as supplemented by the letter agreement, dated as of January 29, 2018 (the “Clean Team Addendum”), by and between the Company and Parent)). Such materials and the information contained therein shall be given only to the Clean Team Member (as defined in the Clean Team Addendum) and the outside counsel for matters relating to Regulatory Law of the recipient and will not be disclosed by such Clean Team Member or outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates, unless expressly provided for in and in compliance with the transactions contemplated hereby terms and conditions set forth in the Confidentiality Agreement (for the avoidance of doubt, as violative of any Antitrust Law supplemented by the Clean Team Addendum)) or which would otherwise preventexpress permission is obtained in advance from the Company or Parent, materially impede as the case may be, or materially delay the consummation its outside legal counsel. Each of the transactions contemplated herebyCompany and Parent shall cause the Clean Team Member and its respective outside legal counsel for matters relating to Regulatory Law to comply with this Section 5.7(b).
(c) Without limiting any other obligations of Parent hereunder, each of Parent, Merger Sub and the Company Parent will use its reasonable best efforts to resolve any subject objections or suits so as respond to permit consummation of the transactions contemplated by this Agreement, including in order and seek to resolve such as promptly as reasonably practicable any objections asserted by any Governmental Entity with respect to the Transactions and use reasonable best efforts to take any and all action necessary to ensure that each requisite approval, authorization or suits whichclearance under the HSR Act and each Requisite Regulatory Approval is obtained by the Outside Date, in each case, without imposing or requiring a Materially Burdensome Condition.
(d) Notwithstanding anything in this Agreement to the contrary, no Parent Company shall be obligated to, and no Acquired Company shall, without the prior written consent of Parent, consent to, take or refrain from taking, or offer or commit or consent to take or refrain from taking (i) any case if not resolvedaction that involves (A) making any divestiture or disposition of any portion of any business or assets, could reasonably be expected to prevent(B) licensing any portion of any business or assets, materially impede (C) accepting or materially delay the consummation of the Merger entering any consent decree or the other transactions contemplated hereby, including selling, holding hold separate order or otherwise disposing of or conducting its business (D) placing any assets in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceedingtrust, in each case no later than by Parent or any of the Outside Date; providedother Parent Companies or the Company or any of the other Acquired Companies or any of their respective Affiliates, however, that, notwithstanding anything in each case except for such actions related to de minimis assets (with such assets measured on a scale relative to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries)Acquired Companies, taken as a whole), (ii) any action that involves (A) accepting or entering into any operational restriction or restriction on the payment or declaration of dividends, (B) making any capital commitment or capital guaranty or (C) entering into any capital support agreement, statement of support, guarantee, keep well or other similar capital maintenance undertaking to maintain a minimum risk-based capital level or rating, in each case with respect to, or in connection with, Parent or the other Parent Companies or the Company or the other Acquired Companies or any of their respective Affiliates which, in each case and together with any other such action, would or would reasonably be expected to detract from the benefits reasonably expected to be derived by Parent and the other Parent Companies as a result of the Merger (with such benefits measured on a scale relative to the Acquired Companies, taken as a whole and to include Parent’s ability to operate its business after giving effect to the Merger), or (iii) any action that would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect, after giving effect to the Parent SpinMerger (with such materiality measured on a scale relative to the Acquired Companies, taken as a whole), in each case of the Merger immediately foregoing clauses (i), (ii) and (iii), whether before or after the other transactions contemplated by this Agreement; providedClosing (any such action, further, that, notwithstanding a “Materially Burdensome Condition”).
(e) Notwithstanding anything to the contrary contained in this Section 5.7Agreement, the Company will not take in no event shall a party hereto or any of its Affiliates be required by a Governmental Entity to agree to take, or enter into any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without which action is not conditioned upon the express written permission of ParentClosing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (KEMPER Corp), Agreement and Plan of Merger (Infinity Property & Casualty Corp)
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use (x) its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things reasonably necessary, proper or advisable (including under any Antitrust Law) to consummate the transactions contemplated by this Agreement as soon as practicable and (ii) do all things reasonably necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution Merger and the other transactions contemplated by this Agreement at the earliest practicable date, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the Spin-Off Transaction Agreements, including using its taking of such actions as are necessary to obtain any requisite consent or expiration of any applicable waiting period under the HSR Act and (B) defending all Actions by or before any Governmental Entity challenging this Agreement or the consummation of the Merger; and (y) reasonable best efforts to obtain all necessary actions resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or non-actions, waivers, consents Foreign Merger Control Law raised by any Governmental Entity and approvals from Governmental Entities, including to prevent the entry of any required action or non-action under Antitrust LawsOrder, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiverhave vacated, consent lifted, reversed or approval from overturned any Governmental Entity. In furtherance and not in limitation Order of the foregoing, the parties hereto agree to (i)(A) 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 of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use 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 as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Lawsthat would prevent, (B) to prohibit, restrict or delay the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party consummation of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies transactions contemplated by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 ClosingAgreement.
(b) In furtherance and not in limitation of the covenants provisions of Section 6.3(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable any filings required to be made under any Antitrust Law or Foreign Merger Control Law; provided that, in any event, an appropriate Notification and Report Form pursuant to the HSR Act shall be prepared and filed as soon as reasonably practicable but in no event later than eight Business Days. Parent shall pay all filing fees for the filings required under any Antitrust Law or Foreign Merger Control Law by the Company and Parent. Each of Parent and the Company agrees to promptly comply with any Request for Additional Information and Documentary Materials ( a “Second Request”) from the relevant Governmental Entity pursuant to the HSR Act and in any event within ninety calendar days of receipt of such Second Request.
(c) The parties contained shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in Section 5.7(a)connection with obtaining the approvals of or clearances from each applicable Governmental Entity, if including:
(i) cooperating with each other in connection with filings required to be made by any objections are asserted party under any Antitrust Law or Foreign Merger Control Law and coordinating with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by Law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by Law, to the other party all necessary information that the other party may reasonably request in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated hereby under any Antitrust by this Agreement and ensuring to the extent permitted by Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division Governmental Entity that each of the Department of Justice parties is given the opportunity to attend any meetings with or other appearances before any other applicable Governmental Entity challenging any of with respect to the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyby this Agreement.
(d) In addition, each of Parentthe parties shall take, Merger Sub or cause to be taken, all other action and the Company will use its reasonable best efforts to resolve any subject objections do, or suits so as cause to permit consummation of be done, all other things reasonably necessary, proper or advisable under all Antitrust Laws to consummate the transactions contemplated by this Agreement, including using its reasonable best efforts to obtain the expiration of all waiting periods and obtain all other approvals and any other consents required to be obtained in order for the parties to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay consummate the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding .
(e) Notwithstanding anything to the contrary set forth in this Section 5.7Agreement, including without limitation, the Company will not take any actionprovisions of Section 6.3(a), Parent and its Subsidiaries shall have no obligation to: (i) sell, divest, or otherwise convey any assets, categories, portions or parts of assets or businesses of the Company or its Subsidiaries or Parent or its Subsidiaries; (ii) agree to refrain sell, divest, or otherwise convey any asset, category, portion or part of an asset or business of the Company or its Subsidiaries or Parent or its Subsidiaries at any time; (iii) license, hold separate or enter into similar arrangements with respect to any assets of the Company, or its Subsidiaries or Parent or its Subsidiaries; or (iv) alter, modify, terminate or cancel any existing relationships, contracts, rights, obligations, policies or practices of the Company or its Subsidiaries or Parent or its Subsidiaries, as a condition to obtaining any and all expirations of waiting periods under the HSR Act or Consents from taking any action, Governmental Entity or otherwise.
(f) Any exchange of privileged and/or confidential information and materials by the parties pursuant to this Section 5.7(b) without 6.3 shall be subject to the express written permission Joint Defense, Common Interest and Confidentiality Agreement dated as of ParentAugust 2, 2012 between Xxxxxxx XxXxxxxxx LLP and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP.
Appears in 2 contracts
Samples: Merger Agreement (Tempur Pedic International Inc), Merger Agreement (Sealy Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws to consummate the MergerOffer, the Distribution Merger and the other transactions contemplated by this Agreement. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant all filings required by applicable foreign Antitrust Laws with respect to the HSR Act Merger as promptly as practicable (and in any event within ten (10) Business Days after prior to the date expiration of this Agreement)any applicable legal deadline, and (Bii) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use 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 as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entitiesany Antitrust Law. The parties will shall also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing Notwithstanding anything in this Section 5.7(a) Agreement to the contrary, Parent agrees, and shall require the Company or cause each of its Subsidiaries and Affiliates, to take any and all actions reasonably necessary to obtain any consents, clearances or agree approvals (x) required under or in connection with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign law, regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade or the significant impediment of effective competition (collectively “Antitrust Laws”) or (y) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Entity, in each case, to cause the Merger to occur prior to the Outside Date, including but not limited to (1) promptly complying with or modifying any requests for additional information (including any second request) by any Governmental Entity, (2) if necessary to obtain clearance by any Governmental Entity before the Outside Date, offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of the Parent and its Subsidiaries and any other restrictions on the activities of Parent and its Subsidiaries and (3) contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of any party hereto to consummate the Offer and the Merger and taking other actions to prevent the entry, enactment or promulgation thereof; provided, however, Parent shall not be required to take any action if such action would, or would reasonably be expected to, have a material adverse impact on the Company or on Parent and its Subsidiaries, taken as a whole. Each party will bear the expenses and costs incurred by such party in connection with respect any competition filings and submissions which may be required by such party for the consummation of the Offer and the Merger pursuant to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closingthis Agreement.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable a Governmental Entity challenging the Offer or the Merger, each of Parent, Purchaser and the Company will cooperate in all respects with each other and will use 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 transactions contemplated hereby Offer or the Merger.
(c) Prior to the Acceptance Time, each party will use commercially reasonable efforts to obtain any consents, approvals or waivers of third parties with respect to any Permits, Environmental Permits or Contracts to which it is a party as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay may be necessary for the consummation of the transactions contemplated herebyby this Agreement or required by the terms of any Contract as a result of the execution, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections performance or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, howeverthat in no event will any party or its Subsidiaries be required to pay, that, notwithstanding anything prior to the contrary in this Section 5.7Effective Time, Parent and Merger Sub shall not be obligated any fee, penalty or other consideration to take any actionsthird party to obtain any consent, approval or agree waiver required with respect to refrain from taking any actions, that, collectively, would have a material adverse effect on such Contract.
(d) To the combined business of extent the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to Merger require action by the contrary in this Section 5.7Company under the Industrial Site Recovery Act (“ISRA”) (N.J.S.A. 13:1K and N.J.A.C. 7:26B), the Company will not take any actionuse commercially reasonable efforts to take, or agree cause to refrain from taking any actionbe taken, pursuant all actions and to this Section 5.7(b) without do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate the express written permission of ParentMerger under ISRA. Parent shall cooperate in all commercially reasonable respects to facilitate compliance with ISRA.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sanofi-Aventis), Merger Agreement (Genzyme Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective TimeClosing, each party will shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, Offer by or before the Distribution and the other transactions contemplated by Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to to, (i)(Ai) in cooperation and consultation with each other, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws with respect to the Transactions as promptly as reasonably practicable (and in any event prior to the expiration of any applicable legal deadline (provided that the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of this the Agreement), unless otherwise agreed to by the Company and Parent in writing) and (Bii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested (including pursuant to a second or similar request) pursuant to the HSR Act and use or any other Antitrust Law. Parent shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods under the HSR Act as soon as practicableCompany, and (ii) use reasonable best efforts to takebe responsible for making any filing or notification, or cause to draft filing as may be takenthe case, all actions and to do, or cause to be done, all things necessary, proper required or advisable under applicable Law foreign Antitrust Laws as promptly as reasonably practicable after the date of this Agreement, unless otherwise agreed to obtain all other required waivers, consents by the Company and approvals from Governmental EntitiesParent in writing. The parties will shall also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by by, or on behalf of any of, such party hereto in connection with proceedings under or relating to any Antitrust Laws; provided, however, that Parent shall have the right to devise, control and direct the strategy and timing for, and making of all material decisions relating to (and shall take the lead in all meetings and communications with any Governmental Body relating to), obtaining any Consent of a Governmental Body contemplated by this Section 5.6, including resolving any Action related to any such Consent; provided, further, however, in devising, controlling and directing the strategy and timing for, and making of all material decisions relating to obtaining any Consent of a Governmental Body contemplated by this Section 5.6 Parent must at all times use its reasonable best efforts to consummate the Offer by or before the Outside Date. Without limiting the foregoing, the parties hereto agree (A) to furnish to the other such information and assistance as the other may reasonably request in connection with obtaining any Consent or any Action under or relating to Antitrust Laws or otherwise relating to or to facilitate a Remedy, (B) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust LawsLaws or otherwise relating to or to facilitate a Remedy, (BC) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (CD) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, (DE) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (EF) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws and (FG) to provide each other with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis basis, if appropriate. Nothing Parent shall pay all filing fees in connection with any filings that may be required by this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closing5.6(a).
(b) In furtherance of, and not without limiting the efforts referenced in limitation Section 5.6(a), Parent shall, and shall cause each of its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, the EU Merger Regulation and any other federal, state or foreign law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Offer to be consummated prior to the Outside Date, including if necessary to obtain clearance by any Governmental Body before the Outside Date, offering, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license or other disposition of any and all of the covenants capital stock, assets, equity holdings, rights, products or businesses of Parent and its Subsidiaries (including the parties contained in Section 5.7(aCompany and its Subsidiaries), if and any objections are asserted other restrictions on the activities of Parent and its Subsidiaries (including the Company and its Subsidiaries) (the foregoing and any other action contemplated by this Section 5.6(b), a “Remedy”). To assist Parent in complying with its obligations set forth in this Section 5.6, 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 a Remedy. Without Parent’s prior written consent, the transactions contemplated hereby under Company shall not (and shall not permit any Antitrust Law of its Subsidiaries to) take or if cause to be taken, do or cause to be done, offer, negotiate, commit to or effect any suit Remedy. For the avoidance of doubt, no party hereto (or their respective Subsidiaries) shall be required pursuant to this Section 5.6 to offer, negotiate, commit to or effect any Remedy that is not conditioned upon the Closing. Notwithstanding anything in this Agreement to the contrary, (i) Parent’s obligation to (and to cause its Subsidiaries (including for this purpose, the Company and its Subsidiaries) to) offer, negotiate, commit to or effect any Remedy or Remedies shall be limited to (a) total ankle replacement products and services and (b) other products and services that represented, individually or in the aggregate, less than $25,000,000 of annual revenue generated during the 2018 fiscal year, and (ii) Parent shall not be required to (or to cause its Subsidiaries (including for this purpose, the Company and its Subsidiaries) to) offer, negotiate, commit to or effect any Remedy or Remedies other than those required pursuant to clause (i).
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.6, including Parent’s right to devise, direct and control the strategy relating to such actions or proceedings, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable a Governmental Entity Body challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyTransaction, each of Parent, Merger Sub Buyer and the Company will shall cooperate in all respects with each other and shall use its reasonable best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit have vacated, lifted, reversed or overturned any decree, judgment, injunction, decision 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 AgreementTransactions.
(d) Prior to the Acceptance Time, including in order each party shall use commercially reasonable efforts to resolve such objections obtain any consents, approvals or suits which, in waivers of third parties with respect to any case if not resolved, could reasonably Contracts to which it (or any Subsidiary of the Company) is a party as may be expected to prevent, materially impede or materially delay necessary for the consummation of the Merger Transactions or required by the other transactions contemplated herebyterms of any Contract as a result of the execution, including selling, holding separate performance or otherwise disposing consummation of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DateTransactions; provided, however, that, notwithstanding anything to the contrary in this Section 5.7Agreement, Parent except in order to effect a Remedy in accordance with the terms of this Agreement, in no event will Parent, Buyer or the Company be required to pay or make or commit to pay or make (and Merger Sub without the prior written consent of Parent, none of the Company or any of its Subsidiaries shall not be obligated pay or make or commit to take pay or make), prior to the Closing, any actionsfee, penalty or agree other consideration or any other accommodation to refrain from taking any actionsthird party to obtain any consent, approval or waiver required with respect to any such Contract.
(e) Each of the parties agrees that, collectively, would have a material adverse effect on between the combined business date of this Agreement and the earlier of the Parent Spinco Closing and the Company termination of this Agreement in accordance with Article VI, it will not, and will ensure that none of their respective Subsidiaries (including the Retained Subsidiaries)will, taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any actionconsummate, or agree enter into any agreement providing for, any investment, acquisition or other business combination that would reasonably be expected to refrain from taking any action, pursuant to this Section 5.7(b) without materially delay or prevent the express written permission consummation of Parentthe Transactions.
Appears in 2 contracts
Samples: Purchase Agreement (Stryker Corp), Purchase Agreement (Wright Medical Group N.V.)
Further Action; Efforts. (a) Subject Prior to the terms and conditions earlier of this Agreement, prior to the Effective TimeTime and the valid termination of the Merger Agreement in accordance with Article VII thereof, each party will of the Lenders, on the one hand, and the Borrower, on the other hand, shall, and shall cause their respective Subsidiaries and controlled Affiliates to use commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as possible and, in any event, by this Agreement or before the Outside Date. To the extent permitted by applicable Law, each of the Lenders and the Spin-Off Transaction AgreementsBorrower will use commercially reasonable efforts to, including using its and use commercially reasonable best efforts to furnish all information concerning such party and its controlled Affiliates, if applicable, as the other party may reasonably request to, (i) obtain or cause to be obtained, or make or cause to be made, all necessary actions or non-actionsrequired permits, waiverslicenses, registrations, certificates, authorizations, orders, exemptions, clearances, consents and approvals from Governmental Entities, including any required action or non-action under applicable Antitrust Laws, Foreign Investments Laws and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation Healthcare Laws set forth on Schedule 5.8(a) of the foregoingCompany Disclosure Letter in connection with the Contemplated Transactions, the parties hereto agree to (i)(A) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act in each case, as promptly as practicable (and in any event within prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Borrower and the Lenders in writing, the applicable filings (or draft filings where applicable) pursuant to the Regulatory Approvals set forth in Section 5.8(a) of the Company Disclosure Letter must be made as promptly as practicable after the date of the Merger Agreement (and in no event later than ten (10) Business Days after the date of this the Merger Agreement)), and (Bii) supply make an appropriate response as promptly as practicable to any additional request for information and documentary material that may be requested made by a Governmental Body pursuant to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, in each case, to the HSR Act and use extent relating to the Contemplated Transactions. The Borrower shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the Lenders, be responsible for making any filing or notification required for the purposes of the Regulatory Approvals required under any applicable waiting periods under Healthcare Laws. To the HSR Act as soon as practicableextent permitted by applicable Law, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The the parties will also hereto shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. , Foreign Investment Laws or Healthcare Laws, in each case, to the extent relating to the Contemplated Transactions.
(b) Without limiting the foregoing, each of the parties hereto agree Borrower, on the one hand, and the Lenders, on the other hand, agree, in each case in connection with the Merger or the other Contemplated Transactions and to the extent permitted by applicable Law (Ai) to give each the other party reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, (Bii) to give the extent permitted by such Governmental Entity, to give each other party an opportunity to participate in each of such meetings, (Ciii) to the extent practicable, to give each the other party reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, (Div) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, to promptly notify the other party of the substance of such communication, (Ev) to provide each the other party with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws, Foreign Investment Laws or Healthcare Laws, and (Fvi) to provide each the other party with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or Healthcare Laws. Any such disclosures or provision of copies by one party any of the Lenders or the Borrower to the other party may be redacted or made on an outside counsel basis basis, if and to the extent reasonably appropriate. Nothing .
(c) Notwithstanding anything in this Section 5.7(a) Agreement to the contrary, each of the Lenders shall, and shall require the Company or cause each of its Subsidiaries and controlled Affiliates to, (i) take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws, and to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, (ii) use its commercially reasonable efforts to take any and all actions reasonably necessary to obtain any consents or agree approvals under Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, and the Regulatory Approvals, and (iii) use commercially reasonable efforts to take any and all actions reasonably necessary to obtain any other consents, clearances, or approvals required (as determined by Parent under the Merger Agreement) in order to eliminate impediments under applicable Laws asserted by any Governmental Body, including in respect of any Laws, order, injunction or decree by any Governmental Body of competent jurisdiction that may be in effect that prohibits, enjoins, restricts, prevents or makes illegal the consummation of the Contemplated Transactions, in each case, to cause the Merger to occur as promptly as possible, including (A) promptly complying with any required requests for additional information (including any second request or equivalent) by any Governmental Body, (B) if necessary to obtain clearance by any Governmental Body before the Outside Date, offering, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of the Lenders or any of their Subsidiaries or controlled Affiliates (including the Surviving Corporation and its subsidiaries) and any other restrictions on the activities of the Lenders or any of their Subsidiaries or Affiliates (including the Surviving Corporation and its Subsidiaries), and (C) contesting, defending, and appealing any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party to the Merger Agreement to consummate the Merger and taking such actions to prevent the entry, enactment, or promulgation thereof; provided, that none of the Lenders will be required to take any of the actions contemplated by the foregoing clauses (B) or (C) as a condition by any Governmental Body to obtaining any consent or approval under Foreign Investments Laws in connection with the Contemplated Transactions, to the extent necessary, or any Regulatory Approval in the event that such action contemplated by such clauses would reasonably be expected to result in a material adverse effect on the business, condition (financial or otherwise), assets, operations, or results of operations of the Lenders or any of their Subsidiaries or Affiliates (including the Surviving Corporation), taken as a whole, following the Contemplated Transactions. Each of the Lenders shall not, and shall cause each of its Subsidiaries and controlled Affiliates to not, take, any action or omit to take any action with respect that would reasonably be expected to its business materially delay or operations unless prevent clearance by any Governmental Body in a manner that would result in the effectiveness of clearance by such agreement or action is conditioned upon Governmental Body required to consummate the ClosingContemplated Transactions from being obtained before the Outside Date being less probable in any material respect.
(bd) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Federal Trade CommissionMerger, the Antitrust Division each of the Department Lenders shall cooperate with the Borrower and shall use its commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents or restricts consummation of Justice the Merger.
(e) Notwithstanding anything in this Agreement to the contrary, in no event shall any provision of this Annex C directly or indirectly obligate or require the Lenders or any other applicable Governmental Entity challenging of their Affiliates to waive, or otherwise impair, alter or prejudice, any of the transactions contemplated hereby rights or remedies granted to the Lenders or their applicable Affiliates under the Transaction Documents, the SLR Financing Agreements, the Credit Agreement or the Loan Documents, or terminate or amend or modify any of the Transaction Documents, the SLR Financing Agreements, the Credit Agreement or the Loan Documents to which the Lenders or their applicable Affiliates are parties.
(f) To the extent the Lenders propose to amend Schedule A to the SLR Rollover Agreement (as violative copy of which, as of the date hereof, is attached hereto as Annex A) pursuant to Section 2.1 thereof after the date hereof for any reason, including to reflect (i) the incurrence or issuance of any Antitrust Law Additional Rollover Indebtedness and/or Additional Rollover Warrants (in each case, as defined in the SLR Rollover Agreement), and (ii) any additional Topco Series A Preferred Units and/or Topco Common Units issuable to the Lenders in exchange for such Additional Rollover Indebtedness and/or Additional Rollover Warrants pursuant to Section 2.1 of the SLR Rollover Agreement, the Lenders shall (A) deliver their good faith calculations supporting such amendment to the Borrower concurrently with the delivery of such calculations to Topco, (B) consult with the Borrower in good faith regarding such calculations and any allocations between such additional Topco Series A Preferred Units and Topco Common Units in any such proposed amendment and (C) consider in good faith any and all reasonable comments made by the Borrower in good faith with respect to such calculations and any allocations between such additional Topco Series A Preferred Units and Topco Common Units in any such proposed amendment (it being understood that the Borrower will not be permitted to contest or dispute such calculations so long as such calculations are made in accordance with Section 2.1 of the SLR Rollover Agreement, and to the extent there is any such contest or dispute, the Lenders’ calculation shall control so long as such calculations are made in accordance with Section 2.1 of the SLR Rollover Agreement).
(g) Prior to the earlier to occur of the Effective Time and the valid termination of the Merger Agreement in accordance with Article VII thereof, the Lenders shall, and shall cause the Holders (as defined in the SLR Rollover Agreement) to, (i) upon the terms, and subject to the satisfaction or valid waiver of the conditions precedent, set forth in the SLR Rollover Agreement, consummate the SLR Rollover Contribution (and, the Rollover Closing (as defined in the SLR Rollover Agreement) (other than in respect of actions required to be taken by Topco or Parent)) on the Closing Date on the terms described therein, and (ii) use commercially reasonable efforts to cause Topco and Parent to consummate the issuance of Topco Series A Preferred Units and Topco Common Units to the Lenders pursuant to and in accordance with the SLR Rollover Agreement on the Closing Date. As a condition and inducement to the Borrower’s willingness to enter into this Agreement, the other Transaction Documents to which would otherwise preventit is a party and the other SLR Financing Agreements to which it is a party, materially impede or materially delay the Borrower is and shall be an express third-party beneficiary of the SLR Rollover Agreement solely for purposes of causing the Holders (as defined in the SLR Rollover Agreement) to cause the consummation of the transactions contemplated herebySLR Rollover Contribution (and, each subject to the terms and conditions of the SLR Rollover Agreement, the Rollover Closing (as defined in the SLR Rollover Agreement) (other than in respect of actions required to be taken by Topco or Parent)) upon the satisfaction or valid waiver of the conditions precedent set forth therein pursuant to and in accordance with Section 2.1 and Section 2.2 of the SLR Rollover Agreement, Merger Sub and the Company will use its reasonable best efforts Borrower shall be entitled to resolve any subject objections or suits so as to permit consummation enforce those provisions of the transactions contemplated by this SLR Rollover Agreement, including in order pursuant to resolve such objections or suits whichSection 9 of the SLR Rollover Agreement, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay cause the Holders to cause the consummation of the Merger or the other transactions contemplated herebySLR Rollover Contribution (and, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything subject to the contrary in this Section 5.7, Parent terms and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business conditions of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent SpinSLR Rollover Agreement, the Merger and Rollover Closing (as defined in the SLR Rollover Agreement) (other transactions contemplated than in respect of actions required to be taken by this Agreement; provided, further, that, notwithstanding anything to Topco or Parent)) upon the contrary in this Section 5.7, satisfaction or valid waiver of the Company will not take any action, or agree to refrain from taking any action, conditions precedent set forth therein pursuant to this and in accordance with Section 5.7(b) without 2.1 and Section 2.2 of the express written permission of ParentSLR Rollover Agreement, as if the Borrower were a direct party thereto.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior each of the Company and the Acquiror agrees to the Effective Time, each party will use its reasonable best efforts to take, or cause to be taken, all actions reasonable actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law Laws to consummate the Mergertransactions contemplated hereby as soon as practicable after the date hereof (but in any event prior to the End Date), including taking all actions to avoid or eliminate each and every impediment to Closing, obtaining any consent, authorization, license, permit, waiting period expiration, order or approval of, clearance from, or exemption by, any Governmental Entity required or advisable to be obtained or made by the Distribution and Company or the other Acquiror or any of their Affiliates in connection with the transactions contemplated by this Agreement and the Spin-Off Transaction Agreements(collectively, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. “Approvals”).
(b) In furtherance and not in limitation of the foregoing, each of the parties hereto agree to Company and the Acquiror agrees (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (practicable, and in any event within no later than ten (10) Business Days after the date of this Agreement), to prepare and submit a Notification and Report Form as required under the HSR Act, and (Bii) supply as promptly as practicable following the receipt thereof, respond to (or properly reduce the scope of) any formal or informal request for additional information and or documentary material that may be requested pursuant to received by either the HSR Act Company or the Acquiror from any Governmental Entity and use 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 as soon as practicable. The payment of all filing fees under the HSR Act shall be borne equally (i.e., 50/50) by the Acquiror, on the one hand, and (ii) use reasonable best efforts to takethe Company, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to on the other parties in advancehand.
(c) Subject to applicable confidentiality restrictions or other restrictions required by applicable Law, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions the Company and proposals made or submitted by or on behalf the Acquiror will notify each other promptly upon the receipt of any party hereto request, investigation, comment, question or other inquiry from any officials of any Governmental Entity in connection with proceedings under or relating any filings made pursuant to this Section 5.4, and shall cooperate in responding to any Antitrust Lawssuch request, investigation, comment, question, or inquiry. Without limiting the generality of the foregoing, each of the parties hereto agree (A) to give Company and the Acquiror shall cooperate with each other reasonable advance notice and consider the good faith views of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) with respect to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, filings, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) proposals made by or on behalf of either party to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries to take or agree to take any action connection with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this AgreementAgreement and, including in order to resolve such objections or suits whichthe extent permitted by applicable Law and by the applicable Governmental Entity, each of Company and the Acquiror shall give each other the opportunity to attend and participate in any substantive meetings, discussions, or conferences with any Governmental Entity taken pursuant to this Section 5.4. The Company and the Acquiror may, as each deems advisable and necessary, designate any competitively sensitive material provided to the other pursuant to this Section 5.4(c) as “Antitrust Counsel Only Material,” in which case if not resolved, could reasonably such material and the information contained therein shall be expected given only to prevent, materially impede or materially delay the consummation outside antitrust counsel of the Merger recipient and will not be disclosed by such outside counsel to employees, officers or directors of the other transactions contemplated hereby, including selling, holding separate recipient unless express permission is obtained in advance from the source of the materials or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding legal counsel. Notwithstanding anything to the contrary in this Section 5.75.4, Parent materials provided pursuant to this Section 5.4(c) may be redacted (i) to the extent necessary to comply with contractual arrangements and Merger Sub (ii) to the extent necessary to address reasonable privilege and confidentiality concerns.
(d) Notwithstanding anything in this Agreement to the contrary, neither the Acquiror nor the Company, nor any of their respective Affiliates, in each case as applicable, shall be required to take any of the following actions: (i) propose, negotiate, offer to commit and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of the Business or any Transferred Assets or any other properties, rights, assets, businesses, product lines or services of the Acquiror or any of its Affiliates, (ii) otherwise agree to take any action that would limit the Acquiror’s or its Affiliates’ freedom of action, ownership or control with respect to the Business or any Transferred Assets or any other properties, rights, assets, businesses, product lines or services of the Acquiror or any of its Affiliates, (iii) terminate any Contract or other business relationship, or (iv) extend any waiting period with any Governmental Entity without the consent of the other party, which consent shall not be obligated unreasonably withheld, conditioned or delayed; provided, however, that (A) each party shall cooperate with the other and use its reasonable best efforts to oppose any request for, the entry of, and seek to have vacated or terminated, any order, judgment, decree, injunction or ruling of any Governmental Entity that would reasonably be expected to restrain, prevent or delay the Closing, including by defending through litigation, any action asserted by any Person in any court or before any Governmental Entity and (B) the Acquiror agrees (and none of the obligations set forth in this clause (B) will be limited or qualified by “reasonable best efforts”), to the extent required by any Governmental Entity to consummate the transactions contemplated by this Agreement prior to the End Date, to (1) propose, negotiate, offer to commit and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of a portion of the Business or any of the Transferred Assets, (2) otherwise agree to take any actionsaction that would limit the Acquiror’s or its Affiliates’ freedom of action, ownership or control in each case with respect to the Business or any Transferred Assets, or agree (3) terminate any Contract or other business relationship of the Business (each of the actions referred to refrain from taking any actionsin clauses (1) through (3), thata “Remedial Action”), collectivelyin each case of the foregoing clauses (1) through (3), so long as such required Remedial Action would not, individually or in the aggregate, reasonably be expected to have a material adverse effect impact on the combined business Business; provided further, however, that the consummation of any such required Remedial Action shall be conditioned upon the occurrence of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of ParentClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Harsco Corp), Asset Purchase Agreement (Chart Industries Inc)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Regulatory Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsTransactions, and no party hereto shall fail to make all necessary registrations and filings and take all steps as may or cause to be necessary taken any action that would reasonably be expected to obtain such required waiverprevent, consent materially impede or approval from any Governmental Entitymaterially delay the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to make (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (and in any event with respect to the Transactions within ten (10) Business Days after from the date of this Agreement), hereof (unless a later date is mutually agreed between the parties) and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as reasonably practicable, and including by requesting early termination of the waiting period provided for in the HSR Act, (ii) use reasonable best efforts appropriate filings under any other Regulatory Law with respect to take, or cause to be taken, all actions the Transactions as soon as reasonably practicable and to do, or cause to be done, all things (iii) any other necessary, proper or advisable registrations, filings and notices with respect to the Transactions. Subject to applicable Law, and except as required by any Governmental Entity, the Company shall not agree to extend any waiting period under the HSR Act or any other Regulatory Law applicable Law to obtain all other required waivers, consents and approvals from Governmental Entitiesthe Transactions without the prior written consent of Parent. The filing fee for the Notification and Report Forms filed under the HSR Act and any other Regulatory Law filings in connection with the Transactions required pursuant to this Section 5.6(a) shall be split fifty percent (50%) by Parent and fifty percent (50%) by the Company.
(b) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Subsidiaries or Affiliates be required to (and the Company and its Subsidiaries and Affiliates shall not, without Parent’s prior written consent) (i) propose, negotiate, commit to, and/or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, transfer, license, disposition, or hold separate (through the establishment of a trust or otherwise) of any assets, properties, or businesses of Parent or its Subsidiaries or Affiliates or of the assets, properties, or businesses to be acquired pursuant to this Agreement, (ii) terminate, modify, or assign existing relationships, Contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) change or modify any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise take or commit to take any other action that would limit Parent’s or its Subsidiaries’ or Affiliates’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement.
(c) In addition, if any action or proceeding is instituted (or threatened) challenging the Transactions as violating any Regulatory 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 Transactions illegal or otherwise delay or prohibit the consummation of the Transactions, the parties will also consult shall have no obligation to take any action to contest, defend or litigate any such claim, cause of action, proceeding, decree, order, Judgment or injunction.
(d) Each of Parent, Merger Sub I and cooperate with Merger Sub II, on the one anotherhand, and consider in good faith the views of one anotherCompany, on the other hand, shall, in connection withwith obtaining requisite approvals and authorizations for the Transactions under the HSR Act or any other Regulatory Law, and provide use its commercially reasonable efforts to the (i) cooperate in all respects with each other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under any filing or relating to submission and in connection with any Antitrust Laws. Without limiting investigation or other inquiry, including any Action initiated by a private party, (ii) promptly notify the foregoingother party of any substantive communication made or received by Parent or the Company, as the parties hereto agree (A) to give each other reasonable advance notice of all meetings with case may be, from any Governmental Entity relating and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions (iii) subject to applicable Law, permit the other party a reasonable opportunity to review any Antitrust Lawssubstantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or private party, and (Biv) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify gives the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review attend or participate. Notwithstanding the foregoing, the Company and comment upon all written communications (including Parent may, as each deems advisable and necessary, reasonably designate any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party competitively sensitive material provided to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.side
Appears in 1 contract
Samples: Merger Agreement (ExOne Co)
Further Action; Efforts. (a) Prior to the Effective Time, the Company shall use its reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts to which the Company or any of its Subsidiaries is a party as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Transactions. Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will of the Company, Parent and Merger Sub shall, as promptly as practicable, use its reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityTransactions. In furtherance and not in limitation of the foregoing, each of the parties hereto agree to Company, Parent and Merger Sub shall (i)(Ai) make an all appropriate filing of a Notification filings and Report Form pursuant submissions (and filings and submissions considered by Parent to be advisable) under the HSR Act and with any other Governmental Authority pursuant to any other applicable Antitrust Laws or otherwise, as promptly as practicable (and practicable, but in any no event within ten (10) later than 10 Business Days after the date of this Agreement)Agreement with respect to filing under the HSR Act, and (B) supply shall make as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other actions necessaryappropriate submissions under other applicable Antitrust Laws, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to takeobtain as promptly as practicable the termination of any waiting period under the HSR Act and any applicable foreign Antitrust Laws, or cause (iii) cooperate and consult with each other in (A) determining which filings are required to be takenmade prior to the Effective Time with, all actions and to dowhich material consents, approvals, permits, notices or cause authorizations are required to be doneobtained prior to the Effective Time from, Governmental Authorities in connection with the execution and delivery of this Agreement and consummation of the Transactions and (B) timely making all things necessarysuch filings and timely seeking all such consents, proper approvals, permits, notices or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in authorizations.
(b) In connection with, and provide to without limiting, the efforts referenced in Section 6.10(a), each of the Company, on the one hand, and Parent and Merger Sub, on the other parties hand, will (i) cooperate in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto all respects with each other in connection with proceedings under any filing or relating to submission and in connection with any Antitrust Laws. Without limiting investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the foregoingother reasonably informed of any communication received by it from, or given by it to, the parties hereto agree Federal Trade Commission (Athe “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other United States or foreign Governmental Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding the Transactions and (iii) permit the other to give review any communication given by it to, and consult with each other reasonable in advance notice of all meetings any meeting or conference with, the FTC, the DOJ or any other Governmental Authority (other than the Defense Security Service) or, in connection with any Governmental Entity relating to proceeding by a private party, with any Antitrust Lawsother Person, (B) and to the extent permitted by the FTC, the DOJ or such other applicable Governmental EntityAuthority (other than the Defense Security Service) or other Person, to give each the other an the opportunity to attend and participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review meetings and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closingconferences.
(bc) In furtherance and not in limitation of the covenants of the parties Parties contained in Section 5.7(a6.10(a) and Section 6.10(b), if any objections are asserted with respect to the transactions contemplated hereby Transactions under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade CommissionFTC, the Antitrust Division of the Department of Justice DOJ or any other applicable Governmental Entity Authority or any private party challenging any of the transactions contemplated hereby Transactions as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyTransactions, each of Parent, Merger Sub and the Company will shall use its reasonable best efforts to resolve any subject such objections or suits so as to permit consummation of the transactions contemplated by this AgreementTransactions, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions.
(d) 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 Merger or any other Transaction, each of Parent, Merger Sub and the Company shall cooperate in all respects with each other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting and use its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, respective reasonable best efforts to vigorously contest and resist any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceedingproceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in each case no later than effect and that prohibits, prevents or restricts consummation of the Outside DateTransactions; provided, however, thatthat no Party shall make any offer, notwithstanding anything acceptance or counter-offer to, or otherwise engage in discussions with, any Governmental Authority with respect to any proposed settlement, consent decree, commitment or remedy, or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested or agreed to by the other Parties, which agreement shall not be unreasonably withheld, delayed or conditioned. Each Party shall use its reasonable best efforts to provide full and effective support the other Parties in all material respects in all such negotiations and discussions to the contrary extent reasonably requested by any such other Party.
(e) Notwithstanding the foregoing or any other provision of this Agreement, (i) nothing in this Section 5.76.10 shall limit a Party’s right to terminate this Agreement pursuant to Section 8.01 and (ii) nothing in this Agreement shall obligate Parent, Parent and Merger Sub shall not be obligated or any of their respective Affiliates to take any actionsagree to (A) sell, hold separate or otherwise dispose of all or a portion of its respective business, assets or properties, or agree conduct its business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to refrain from taking any actionsContract any material accommodation, that(C) commence or defend any Action or claim in respect of any threatened Action, collectively(D) limit in any manner whatsoever the ability of such entities to conduct, would have a material adverse effect on the combined business own, operate or control any of their respective businesses, assets or properties or of the businesses, properties or assets of the Company and its Subsidiaries or (E) waive any of the conditions set forth in ARTICLE VII of this Agreement. Without the prior written consent of Parent, none of the Company or any of its Subsidiaries shall, in response to any objections asserted with respect to the Transactions under any Antitrust Law or any suit instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Authority or any private party challenging any of the Transactions as violative of any Antitrust Law, (A) sell, hold separate or otherwise dispose of all or a portion of their respective businesses, assets or properties, or conduct their business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to any Contract any material accommodation, (C) commence or defend any Action or claim in respect of any threatened Action or (D) limit in any manner whatsoever the ability of such entities to conduct, own, operate or control any of their respective businesses, assets or properties.
(f) Without limiting the generality of Section 6.10(a), each of Parent Spinco and the Company and their respective Subsidiaries shall use its reasonable best efforts to submit a draft joint voluntary notice and, following the receipt of any comments thereto, a final joint voluntary notice, to CFIUS (including the Retained Subsidiaries), taken “Exon-Xxxxxx Filing”) as a whole, after giving effect to promptly as reasonably practicable following the date of this Agreement. Parent Spin, the Merger and the other transactions contemplated by this Agreement; providedCompany shall cooperate in preparing, further, that, notwithstanding anything to pre-filing and filing with CFIUS a joint voluntary notice of the contrary Transactions in this Section 5.7, accordance with applicable Law. Each of Parent and the Company will not take shall use its reasonable best efforts to respond as promptly as reasonably practicable (but in any action, event within the time required to avoid possible rejection or agree deferred acceptance of the Exon-Xxxxxx Filing under 31 C.F.R. § 800.403) to refrain any inquiries or requests received from taking any action, pursuant CFIUS in connection with such joint voluntary notice. Each of Parent and the Company shall use its reasonable best efforts to this Section 5.7(b) without obtain the express written permission of ParentCFIUS Approval.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to, or to cause their ultimate parent entity (i)(Aas such term is defined in the HSR Act) to, (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as practicable (and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of this Agreement), ) and (Bii) to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all or any other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesAntitrust Law. The parties also will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, (D) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws and (F) to provide each other with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis basis, if appropriate. Nothing Parent agrees that, between the date of this Agreement and the Closing, neither Parent nor any of its Subsidiaries shall enter into any Contract with respect to a transaction described in Section 5.6(a) of the Company Disclosure Letter, if such transaction would reasonably be expected to prevent the consummation of the Merger by the Outside Date. Notwithstanding the foregoing, Parent shall control and lead all communications, negotiations, timing decisions and strategy on behalf of the parties hereto relating to any approval under the HSR Act or any other Antitrust Laws and any litigation matters pertaining to the HSR Act or any other Antitrust Laws applicable to the Merger, and the Company shall take all reasonable actions to support Parent in connection therewith; provided that Parent shall consult in advance with, and consider in good faith the views of, the Company in respect of obtaining or concluding any such approvals or litigation matters; provided, further, that neither Parent nor the Company shall enter into any timing agreement with a Governmental Body regarding the timing of the Closing without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).
(b) Each of Parent and the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with the HSR Act, the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign Law designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Section 5.7(aAgreement to the contrary, the parties agree that Parent, Purchaser or any other Subsidiary of Parent shall not be required to: (i) agree to conditions imposed by any Governmental Body or propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of the Company, any Subsidiary of the Company, Parent or any Subsidiary of Parent, (ii) accept any operational restrictions, or otherwise propose, negotiate, take or commit to take actions that limit any of Parent’s, the Company’s, the Surviving Corporation’s or any other Subsidiary of Parent’s or the Company’s freedom of action with respect to, or ability to retain or freely operate, any of the assets, properties, licenses, rights, operations or businesses of Parent, the Company, the Surviving Corporation or any other Subsidiary of Parent or the Company, (iii) undertake or enter into agreements with any Governmental Body or agree to the entry of an order by any Governmental Body, (iv) commit to terminate, amend or replace any existing relationships and contractual rights and obligations of Parent, the Company, the Surviving Corporation or any other Subsidiary of Parent or the Company, (v) terminate any relevant venture or other arrangement of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation, or (vi) effectuate any other change or restructuring of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent or the Company. The Company shall require not, and shall cause the Company Subsidiaries not to, take any of the foregoing actions in clauses (i) through (vi) with respect to the Company or its Subsidiaries any Company Subsidiary unless consented to take or agree to take any action with respect to its business or operations unless in writing by Parent, provided that the Company shall, and shall cause each Company Subsidiary to, undertake such actions if requested by Parent if the effectiveness of such agreement or action is conditioned upon the occurrence of the Closing. Each party will bear its own costs of preparing its own pre-merger notifications and similar filings and notices in other jurisdictions and related expenses incurred to make or obtain any approval, clearance or notice under any applicable Antitrust Law (including under the HSR Act) or other applicable Law, provided that Parent will be responsible for payment of the applicable filing fees for the filings required under the HSR Act and such other Antitrust Laws.
(c) Without limiting the obligations in clauses (a) and (b) In furtherance and not of this Section 5.6, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyMerger, each of Parent, Merger Sub Purchaser and the Company will cooperate in all respects with each other and will use its reasonable best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated Merger.
(d) If, prior to the Effective Time (i) the U.K. Competition and Markets Authority (the “CMA”) indicates in writing to Parent that it has decided to formally investigate the Merger and, accordingly, requests Parent to submit a merger notice in the form prescribed under the Enterprise Act 2002, (ii) the European Commission (the “EC”) indicates in writing to Parent that a member state of the European Union or the EC is making, or has made, a referral of the Merger to the EC under Article 22 of the EU Merger Regulation or (iii) a merger control review is initiated or commenced by this Agreementa Governmental Body listed on Section 5.6(d) of the Company Disclosure Letter, including then, Parent shall provide to the Company a copy of such written indication or filing, form or other submission as promptly as practicable after its receipt or submission thereof, as applicable, and if such indication or filing, form or other submission shall have been so provided, approval of the Merger by the CMA under the Enterprise Act of 2002 or the EC under Article 22 of the EU Merger Regulation or such other Governmental Authority under the applicable Law in order its jurisdiction, as the case may be, shall thereupon be deemed to resolve such objections be added to Section 6.1(a) of the Company Disclosure Letter.
(e) Prior to the Effective Time, each party will use commercially reasonable efforts to obtain any consents, approvals, or suits which, in waivers of third parties with respect to any case if not resolved, could reasonably Contracts to which it is a party as may be expected to prevent, materially impede or materially delay necessary for the consummation of the Merger Contemplated Transactions or required by the other transactions contemplated herebyterms of any Contract as a result of the execution, including sellingperformance, holding separate or otherwise disposing consummation of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DateContemplated Transactions; provided, however, that, notwithstanding anything in no event will the Company or its Subsidiaries be required to pay, prior to the contrary in this Section 5.7Effective Time, Parent and Merger Sub shall not be obligated to take any actionsfee, penalty, or agree to refrain from taking other consideration (other than any actionssuch fee, that, collectively, would have a material adverse effect on the combined business of the penalty or other consideration that Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect advances to the Parent SpinCompany) or make any other accommodation to any third party to obtain any consent, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any actionapproval, or agree waiver required with respect to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentsuch Contract.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective TimeClosing, each party will the Company and Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the MergerOffer, as promptly as practicable and, in any event, by or before the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction AgreementsOutside Date, including using its reasonable best efforts obtaining all Consents, registrations and declarations from any Governmental Body or third party necessary, proper or advisable to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entitiesconsummate the Transactions, including any required action or non-action under Antitrust Lawssuch Consents, and to make all necessary registrations and filings declarations required under the HSR Act and take all steps as may be necessary any other applicable Antitrust Laws or any applicable Foreign Investment Laws. Notwithstanding anything in this Agreement to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to to, (i)(Ai) in cooperation and consultation with each other, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws or Foreign Investment Laws with respect to the Transactions as promptly as reasonably practicable (and in any event prior to the expiration of any applicable legal deadline (provided that the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of this the Agreement), unless otherwise agreed to by the Company and Parent in writing) and (Bii) use reasonable best efforts to supply as promptly as reasonably practicable any additional information and documentary material that may be requested (including pursuant to a second or similar request) pursuant to the HSR Act and use or any other Antitrust Law or Foreign Investment Laws. Parent shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods Company, have principal responsibility for any filing or notification, or draft filing as may be the case, required or deemed mutually advisable by both Buyer and the Company, under foreign Antitrust Laws and Foreign Investment Laws as promptly as reasonably practicable after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. Neither Parent nor Company will withdraw any such filings or notifications, nor extend the timing for any review period by any Governmental Body in connection with obtaining any Consent, registration or declaration of a Governmental Body, without the prior written consent of the other party. Parent shall have principal responsibility for determining the timing, sequence and strategy of seeking all clearances, consents or approvals under the HSR Act as soon as practicableand other applicable Antitrust Laws and Foreign Investment Laws, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The provided that the parties will shall also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by by, or on behalf of any of, such party hereto in connection with proceedings under or relating to any Antitrust Laws and Foreign Investment Laws. Without limiting the foregoing, the parties hereto agree (A) to furnish to the other such information and assistance as the other may reasonably request in connection with obtaining any Consent, registration or declaration or any Action under or relating to Antitrust Laws, Foreign Investment Laws or otherwise relating to or to facilitate a Remedy Action, (B) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or otherwise relating to or to facilitate a Remedy Action, (BC) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (CD) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws, (DE) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws or Foreign Investment Laws, to promptly notify the other party of the substance of such communication, (EF) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws or Foreign Investment Laws and (FG) to provide each other with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws. Any such disclosures or provision of copies by one party The parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.6 as “outside counsel.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel; provided that materials provided pursuant to this Section 5.6 may be made on an outside counsel basis if appropriateredacted (i) to remove personally sensitive information; (ii) to remove references concerning the valuation of or future plans for the applicable business to which the information relates, (iii) as necessary to comply with contractual obligations, (iv) as necessary to comply with applicable Law and (v) as necessary to address reasonable privilege concerns. Nothing Parent shall pay all filing fees in connection with any filings that may be required by this Section 5.6(a).
(b) In furtherance of, and without limiting the efforts referenced in Section 5.6(a), Parent shall, and shall cause each of its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, the EU Merger Regulation and any Law designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Offer to be consummated as soon as practicable and in any event prior to the Outside Date. Notwithstanding anything to the contrary in this Section 5.7(a5.6, in no event shall Parent or any of its Subsidiaries be obligated to, or to agree to, (i) shall require divest, dispose of, license, or hold separate all or any portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries; or (ii) consent to or otherwise agree to other restrictions or limitations on any business, operations, assets, properties or contractual freedoms of any such businesses or operations (the preceding clauses (i) and (ii) collectively, a “Remedy Action”), unless, (A) in the case of the preceding clause (i) only, such Remedy Action involves solely assets or businesses of the Company and its Subsidiaries (or at the election of Parent, of Parent and its Affiliates); (B) in the case of the preceding clause (ii) only, such Remedy Action is a proposal, agreement, commitment or undertaking from Parent or any of its Affiliates or the Company and its Subsidiaries to take license, supply or agree provide products and services to take third parties (including competitors of Parent or any action of its Affiliates or the Company and its Subsidiaries); and (C) in each of clauses (i) and (ii), such Remedy Action, individually and in the aggregate with respect all other Remedy Actions, would not reasonably be expected to have a material negative impact on Parent, the Company and their respective Subsidiaries, taken as a whole, measured on a scale relative to the Company and its business Subsidiaries, taken as a whole (each, a “Permitted Remedy Action”). For the avoidance of doubt, no party hereto (or operations unless the effectiveness of such agreement their respective Subsidiaries) shall be required pursuant to this Section 5.6 to offer, negotiate, commit to or action effect any Remedy Action that is not conditioned upon the Closing.
(c) Without limiting the obligations in clauses (a) and (b) In furtherance and not of this Section 5.6, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit Action is instituted (or threatened to be instituted) by the Federal Trade Commissiona Governmental Body challenging any Transaction, the Antitrust Division each of the Department Company, Parent and Buyer shall take any and all actions necessary to contest and resist any such Action (or threatened Action), including to ensure that any Remedy Action sought in such Action is a Permitted Remedy Action, and to have vacated, lifted, reversed or overturned any Judgment or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of Justice the Transactions or imposes or seeks to impose any Remedy Action that is not a Permitted Remedy Action.
(d) Prior to the Acceptance Time, each party hereto shall use reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts to which it (or any other applicable Governmental Entity challenging any Subsidiary of the transactions contemplated hereby Company) is a party as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay may be necessary for the consummation of the transactions contemplated herebyTransactions or required by the terms of any Contract as a result of the execution, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections performance or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DateTransactions; provided, however, that, notwithstanding anything to the contrary in this Section 5.7Agreement, Parent and Merger Sub shall not in no event will the Company be obligated required to take pay or make or commit to pay or make, any actionsfee, penalty or agree other consideration or any other accommodation to refrain from taking any actionsthird party to obtain any consent, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco approval or waiver required with respect to any such Contract and the Company and their respective Subsidiaries (including the Retained Subsidiaries)Company’s failure to obtain any such consents, taken as approvals or waivers with respect to any Contracts shall in no event be a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in breach of its obligations under this Section 5.7, 5.6(d) that factors into determining whether the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(bOffer Condition set forth in paragraph 2(b) without the express written permission of ParentAnnex I has been satisfied.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective TimeClosing, each party will the Company and Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the MergerOffer, as promptly as practicable and, in any event, by or before the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction AgreementsOutside Date, including using its reasonable best efforts obtaining all Consents, registrations and declarations from any Governmental Body or third party necessary, proper or advisable to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entitiesconsummate the Transactions, including any required action or non-action under Antitrust Lawssuch Consents, and to make all necessary registrations and filings declarations required under the HSR Act and take all steps as may be necessary any other applicable Antitrust Laws or any applicable Foreign Investment Laws. Notwithstanding anything in this Agreement to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to to, (i)(Ai) in cooperation and consultation with each other, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws or Foreign Investment Laws with respect to the Transactions as promptly as reasonably practicable (and in any event prior to the expiration of any applicable legal deadline (provided that the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of this the Agreement), unless otherwise agreed to by the Company and Parent in writing) and (Bii) use reasonable best efforts to supply as promptly as reasonably practicable any additional information and documentary material that may be requested (including pursuant to a second or similar request) pursuant to the HSR Act and use or any other Antitrust Law or Foreign Investment Laws. Parent shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods Company, have principal responsibility for any filing or notification, or draft filing as may be the case, required or deemed mutually advisable by both Buyer and the Company, under foreign Antitrust Laws and Foreign Investment Laws as promptly as reasonably practicable after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. Neither Parent nor Company will withdraw any such filings or notifications, nor extend the timing for any review period by any Governmental Body in connection with obtaining any Consent, registration or declaration of a Governmental Body, without the prior written consent of the other party. Parent shall have principal responsibility for determining the timing, sequence and strategy of seeking all clearances, consents or approvals under the HSR Act as soon as practicableand other applicable Antitrust Laws and Foreign Investment Laws, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The provided that the parties will shall also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by by, or on behalf of any of, such party hereto in connection with proceedings under or relating to any Antitrust Laws and Foreign Investment Laws. Without limiting the foregoing, the parties hereto agree (A) to furnish to the other such information and assistance as the other may reasonably request in connection with obtaining any Consent, registration or declaration or any Action under or relating to Antitrust Laws, Foreign Investment Laws or otherwise relating to or to facilitate a Remedy Action, (B) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, Foreign Investment Laws or otherwise relating to or to facilitate a Remedy Action, (BC) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (CD) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws, (DE) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws or Foreign Investment Laws, to promptly notify the other party of the substance of such communication, (EF) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws or Foreign Investment Laws and (FG) to provide each other with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws. Any such disclosures or provision of copies by one party The parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.6 as “outside counsel.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel; provided that materials provided pursuant to this Section 5.6 may be made on an outside counsel basis if appropriateredacted (i) to remove personally sensitive information; (ii) to remove references concerning the valuation of or future plans for the applicable business to which the information relates, (iii) as necessary to comply with contractual obligations, (iv) as necessary to comply with applicable Law and (v) as necessary to address reasonable privilege concerns. Nothing Parent shall pay all filing fees in connection with any filings that may be required by this Section 5.6(a).
(b) In furtherance of, and without limiting the efforts referenced in Section 5.6(a), Parent shall, and shall cause each of its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, the EU Merger Regulation and any Law designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Offer to be consummated as soon as practicable and in any event prior to the Outside Date. Notwithstanding anything to the contrary in this Section 5.7(a5.6, in no event shall Parent or any of its Subsidiaries be obligated to, or to agree to, (i) shall require divest, dispose of, license, or hold separate all or any portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries; or (ii) consent to or otherwise agree to other restrictions or limitations on any business, operations, assets, properties or contractual freedoms of any such businesses or operations (the preceding clauses (i) and (ii) collectively, a “Remedy Action”), unless, (A) in the case of the preceding clause (i) only, such Remedy Action involves solely assets or businesses of the Company and its Subsidiaries (or at the election of Parent, of Parent and its Affiliates); (B) in the case of the preceding clause (ii) only, such Remedy Action is a proposal, agreement, commitment or undertaking from Parent or any of its Affiliates or the Company and its Subsidiaries to take license, supply or agree provide products and services to take third parties (including competitors of Parent or any action of its Affiliates or the Company and its Subsidiaries); and (C) in each of clauses (i) and (ii), such Remedy Action, individually and in the aggregate with respect all other Remedy Actions, would not reasonably be expected to have a material negative impact on Parent, the Company and their respective Subsidiaries, taken as a whole, measured on a scale relative to the Company and its business Subsidiaries, taken as a whole (each, a “Permitted Remedy Action”). For the avoidance of doubt, no party hereto (or operations unless the effectiveness of such agreement their respective Subsidiaries) shall be required pursuant to this Section 5.6 to offer, negotiate, commit to or action effect any Remedy Action that is not conditioned upon the Closing.
(c) Without limiting the obligations in clauses (a) and (b) In furtherance and not of this Section 5.6, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit Action is instituted (or threatened to be instituted) by the Federal Trade Commissiona Governmental Body challenging any Transaction, the Antitrust Division each of the Department Company, Parent and Buyer shall take any and all actions necessary to contest and resist any such Action (or threatened Action), including to ensure that any Remedy Action sought in such Action is a Permitted Remedy Action, and to have vacated, lifted, reversed or overturned any Judgment or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of Justice the Transactions or imposes or seeks to impose any Remedy Action that is not a Permitted Remedy Action.
(d) Prior to the Acceptance Time, each party hereto shall use reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts to which it (or any other applicable Governmental Entity challenging any Subsidiary of the transactions contemplated hereby Company) is a party as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay may be necessary for the consummation of the transactions contemplated herebyTransactions or required by the terms of any Contract as a result of the execution, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections performance or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DateTransactions; provided, however, that, notwithstanding anything to the contrary in this Section 5.7Agreement, Parent and Merger Sub shall not in no event will the Company be obligated required to take pay or make or commit to pay or make, any actionsfee, penalty or agree other consideration or any other accommodation to refrain from taking any actionsthird party to obtain any consent, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco approval or waiver required with respect to any such Contract and the Company and their respective Subsidiaries (including the Retained Subsidiaries)Company’s failure to obtain any such consents, taken as approvals or waivers with respect to any Contracts shall in no event be a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in breach of its obligations under this Section 5.7, 5.6(d) that factors into determining whether the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(bOffer Condition set forth in paragraph 2(b) without the express written permission of ParentAnnex I has been satisfied.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain including: (i) obtaining all necessary actions or non-actions, waivers, consents consents, qualifications and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, Entities and to make making all necessary registrations and registrations, filings and take notifications and taking all reasonable steps as may be necessary to obtain such required waiveran approval, consent clearance, non-action letter, waiver or approval exemption from any Governmental EntityEntity (including under the HSR Act and the Requisite Regulatory Approvals); (ii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iii) executing and delivering any additional documents or instruments reasonably necessary to consummate the Transactions and to carry out this Agreement. In furtherance and not in limitation of the foregoing, the parties hereto agree each party agrees to (i)(A) make make, if required, appropriate filings and registrations under applicable Regulatory Laws and Insurance Laws. Each party agrees to make, if required, an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within thirty (and in any event within ten (1030) Business Days days after the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act and use reasonable best efforts to take all other reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts including by requesting early termination of the waiting period provided for in the HSR Act. Each party agrees to takemake, if required, appropriate filings of Applications for Approval of Acquisition of Control Statements, or cause “Form A” statements, and all related filings, with respect to the Transactions with the applicable Insurance Regulators, as applicable, within thirty (30) Business Days after the date hereof; provided, however, that any required pre-acquisition notice (Form E) filings, Form E exemption filings, and all related applications and filings with respect to the Transactions shall be taken, all actions submitted within forty (40) Business Days after the date hereof. Each party agrees to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be reasonably requested by any Insurance Regulator pursuant to the Insurance Laws and to do, or cause to be done, take all things other reasonable actions necessary, proper or advisable under applicable Law to obtain all other required waivers, the applicable consents and approvals from of the applicable Insurance Regulators as soon as practicable.
(b) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with and without limiting the obligations to use certain efforts referenced in Section 5.5(a), to the extent relating to the requisite approvals, authorizations and clearances for the Transactions under the HSR Act and the other Regulatory Laws and the Insurance Laws, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) keep the other reasonably informed of any communication 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”), any Insurance Regulator or any other Governmental EntitiesEntity and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions, (iii) permit the other a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting, discussion or conference with, the FTC, the DOJ, any Insurance Regulator or any other Governmental Entity or, in connection with any Action by a private party, with any other Person, and, to the extent permitted by the FTC, the DOJ, such Insurance Regulator or such other applicable Governmental Entity or other Person, as applicable, give the other the reasonable opportunity to attend and participate in such meetings, discussions and conferences solely to the extent such meetings, discussions and conference relate to this Agreement, the Merger or the other Transactions, and (iv) to the extent practicable and subject to the other provisions in this Section 5.5, attempt to confer in good faith in order to (A) exchange and review respective views and positions with the other as to potential Materially Burdensome Conditions and (B) discuss and present to, and engage with, the applicable Governmental Entity regarding any approaches or actions that could mitigate the scope or impact of a potential Materially Burdensome Condition so that it does not become a Materially Burdensome Condition. Parent and the Company shall promptly advise each other upon receiving any communication, including promptly furnishing each other copies of any written or electronic communication, and shall promptly advise each other when any such communication causes such party to believe that there is a reasonable likelihood that any requisite approval, authorization or clearance for the Transactions under the HSR Act or any Requisite Regulatory Approval will not be obtained or that the receipt of any such approval, authorization or clearance or Requisite Regulatory Approval will be materially delayed or conditioned or impose or require a Materially Burdensome Condition. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto party, including reasonable access to any materials submitted in connection with any proceedings under or relating to the HSR Act or any Antitrust Lawsother applicable Regulatory Law, including any proceeding under 16 C.F.R. § 803.20. Notwithstanding anything to the contrary in this Section 5.5, no party will have any obligation to share any trade secret or other competitively sensitive information with the other party. Such materials and the information contained therein shall be given only to the outside counsel for matters relating to Regulatory Law of the recipient and will not be disclosed by such outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates, unless express permission is obtained in advance from the Company or Parent, as the case may be, or its outside legal counsel. Each of the Company and Parent shall cause its respective outside legal counsel for matters relating to Regulatory Law to comply with this Section 5.5(b).
(c) Without limiting the foregoingany other obligations of Parent hereunder, the parties hereto agree (A) Parent will respond to give each other reasonable advance notice of all meetings with and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub Transactions and the Company will use its reasonable best efforts to resolve take any subject objections and all action necessary to ensure that each requisite approval, authorization or suits so as clearance under the HSR Act and each Requisite Regulatory Approval is obtained by the Outside Date, in each case, without imposing or requiring a Materially Burdensome Condition.
(d) Notwithstanding anything in this Agreement to permit consummation the contrary, no Parent Company shall be obligated to, and no Acquired Company shall, without the prior written consent of Parent at its sole discretion, consent to, take or refrain from taking, or offer or commit or consent to take or refrain from taking (A) any action that involves (i) making any divestiture or disposition of any portion of any business or assets, (ii) licensing any portion of any business or assets, (iii) accepting or entering any consent decree or hold separate order, (iv) placing any assets in trust, in each case by Parent or any of the transactions contemplated by this Agreementother Parent Companies or the Company or any of the other Acquired Companies or any of their respective Affiliates, including (v) accepting or entering into any operational restriction or restriction on the payment or declaration of dividends, (vi) making any capital commitment or capital guaranty, (vii) entering into any capital support agreement, statement of support, guarantee, keep well or other similar capital maintenance undertaking to maintain a minimum risk-based capital level or rating, or (B) any other action with respect to, or in order to resolve such objections connection with, Parent or suits the other Parent Companies or the Company or the other Acquired Companies or any of their respective Affiliates, in the case of clauses (A) and (B) above, which, in individually or together with any case if not resolvedother such action, could would or would reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business business, results of the Parent Spinco and operations or financial condition of (x) the Company and their respective Subsidiaries (including the Retained its Subsidiaries), taken as a whole, after giving effect when considered together with the business lines of Parent and its Subsidiaries that, as of the date hereof, Parent intends to integrate with the Company and its Subsidiaries following the Closing, or (y) Parent Spinand its Subsidiaries, taken as a whole (provided that, for this purpose, the Merger business, financial condition, results of operations and financial condition of Parent and its Subsidiaries, taken as a whole, shall be deemed to be as of the other transactions contemplated by this Agreement; providedsame scale as the entities described in the foregoing clause (x)) (any such action, further, that, notwithstanding a “Materially Burdensome Condition”).
(e) Notwithstanding anything to the contrary contained in this Section 5.7Agreement, the Company will not take in no event shall a party or any actionof its Affiliates be required by a Governmental Entity to agree to take, or agree enter into any action with respect to refrain from taking any actiontheir respective assets, businesses or Subsidiaries pursuant to this Section 5.7(b) without 5.5, which action is not conditioned upon the express written permission of ParentClosing.
Appears in 1 contract
Samples: Merger Agreement (Allstate Corp)
Further Action; Efforts. (a) Subject Except with respect to matters described in Section 6.6(b), upon the terms and subject to the conditions of this Agreement, prior each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all appropriate action and to do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate the Merger and the other transactions contemplated hereby at the earliest practicable date; provided that the parties hereto understand and agree that the reasonable best efforts of any party hereto shall not be deemed to include (A) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Entity in connection with the transactions contemplated hereby or (B) selling, 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 of its or the Surviving Corporation’s Subsidiaries or any of their respective Affiliates’ businesses, assets or properties, except where the taking of an action specified in (A) or (B) would not reasonably be expected to cause a loss of rights (other than loss of customers) or increase in obligations of Parent and its Subsidiaries (including the Company), taken as a whole, following the Closing.
(b) Upon the terms and subject to the Effective Timeconditions of this Agreement, each party will of Parent and Merger Sub agrees to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with the Company in order to do, all things necessary, proper or advisable under applicable Law Regulatory Laws to consummate the Merger, Merger at the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreementsearliest practicable date, including using its reasonable best efforts to obtain cause the preparation and filing of all necessary actions or non-actionsforms, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings notices required to be filed to consummate the Merger and take all steps the taking of such actions as may be are necessary to obtain such required waiver, any requisite consent or approval from expiration of any Governmental Entityapplicable waiting period under Regulatory Laws. Parent and the Company shall each be responsible for fifty percent (50%) all filing fees and other charges for the filings required under the Regulatory Laws by the Company, Merger Sub and Parent, other than with respect to any filings required in the People’s Republic of China.
(c) In furtherance and not in limitation of the foregoingprovisions of Section 6.6(a) and 6.6(b), each of the parties hereto agree parties, as applicable, agrees to prepare and file as promptly as practicable, and in any event with respect to clause (i)(Ai) make below, by no later than fifteen (15) Business Days after date of this Agreement, (i) 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 of this Agreement), and (Bii) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other actions filings necessary, proper or advisable to cause the expiration or termination under any other Regulatory Law.
(d) In furtherance and not in limitation of the applicable waiting periods under provisions of Section 6.6(a), 6.6(b) and 6.6(c), each of the HSR Act as soon as practicable, and (ii) parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to achieve CFIUS clearance as set forth in Section 7.1(d) hereof, including (i) within twenty (20) Business Days after the date of this Agreement, make the draft filing with CFIUS contemplated under 31 C.F.R. § 800.401(f) with respect to the transactions contemplated hereby and engage in the pre-notice consultation process with CFIUS (it being understood and agreed that while it is the general intention of the parties to make such filing as promptly as is reasonably practicable following execution of this Agreement, neither party shall make such filing until such time as each party mutually agrees), (ii) following such pre-notice consultation, as promptly as practicable and, in any event, within seven (7) 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, file with CFIUS a voluntary notice as contemplated by 31 C.F.R. § 800.401(a) and, in the case of Parent and Merger Sub, the personal identifier information required to be submitted separately from such notice as contemplated by 31 C.F.R. § 800.402(c)(6)(vi)(B) with respect to the transactions contemplated hereby, and in the case of Guarantor, the representation that, in Guarantor’s opinion, neither Guarantor, Parent nor Merger Sub is controlled by a foreign government, as required under 31 C.F.R. § 800.402(j)(2), (iii) promptly, and in all events consistent with any deadline imposed under CFIUS or other applicable Law, comply with any request received by any of them or any of their respective Subsidiaries from any Governmental Entity for any certification, additional information, documents or other materials in respect of such notice or such transactions, (iv) ensure that any information furnished in respect of this Section 6.6(d) is true, complete and correct in all material respects and (v) cooperate with each other in connection with any such filing and in connection with resolving any investigation or other inquiry of any Governmental Entity under Exon-Xxxxxx with respect to any such filing or any such transaction. Except as otherwise provided in Section 6.6(a), nothing in this Agreement shall be construed as requiring that Guarantor, Parent, Merger Sub or the Company to agree to accept any CFIUS mitigation measure that is not acceptable to Parent in its sole discretion.
(e) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall keep the other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated hereby and work cooperatively in connection with promptly obtaining the approvals of or clearances from each applicable Governmental Entity with respect to the same, including:
(i) liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all communications with such Governmental Entities relating to the transactions contemplated hereby. To the extent permitted by Law or Governmental Entity, neither Parent and Merger Sub, on the one hand, nor the Company, on the other hand, will make any notification or filing in relation to the transactions contemplated hereby without first providing the other with a copy of such notification or filing in draft form and giving the other a reasonable opportunity to review and discuss its content before it is filed with the relevant Governmental Entities, and the party making such notification shall consider and incorporate all reasonable comments timely made by the other in this respect and once filed shall promptly furnish the other with a copy of any such notification or filing;
(ii) timely furnishing to each other all information within its possession that is required for any notification or other filing to be made by the other pursuant to applicable Law in connection with the transactions contemplated hereby; provided, however, that materials may be redacted as necessary to obtain all other required waivers(i) comply with contractual arrangements or applicable Law, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another(ii) to address good faith legal privilege or confidentiality concern, and consider (iii) to remove references concerning the valuation;
(iii) promptly notifying each other of any communications from or with any Governmental Entity with respect to the transactions contemplated hereby and ensuring to the extent permitted by Law or Governmental Entity that each party and its legal counsel are given the opportunity to attend and participate in good faith any meetings, discussions with, or other appearances before, whether in person, by telephone or otherwise, any Governmental Entity with respect to the views of one another, transactions contemplated hereby;
(iv) consulting and cooperating with each other in connection with, and provide to the other parties in advance, any with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings Actions under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Regulatory Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under hereby; and
(v) without prejudice to any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division rights of the Department of Justice parties hereunder, consulting and cooperating in all respects with each other in defending all Actions by or before any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law this Agreement or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party Party will use reasonable its best efforts to (and, in the case of BidCo, use its best efforts to cause each of its subsidiaries and Affiliates (collectively, the “BidCo Group”) to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws and regulations to consummate the Merger, the Distribution Acquisition and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityAgreement. In furtherance and not in limitation of the foregoing, the parties each Party hereto agree agrees to make (i)(Aor cause to be made) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and the foreign antitrust and investment filings listed in Section 6.5(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby as promptly as practicable (and in any event within ten (10) Business Days after of the date hereof with respect to any filing made pursuant to the HSR filing and as promptly as practicable for the other filings listed in Section 6.5(a) of this Agreement), the Company Disclosure Letter and (B) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any Antitrust or Foreign Investment Law and use reasonable best efforts to take any and all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and to obtain approval required under any other Antitrust or Foreign Investment Law as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance BidCo, on the one hand, and not the Company, on the other hand, shall, in limitation of connection with the covenants of the parties contained efforts referenced in Section 5.7(a), if any objections are asserted with respect 6.5(a) to obtain all requisite approvals and authorizations or expiration of waiting periods for the transactions contemplated hereby by this Agreement under the HSR Act or any other Antitrust Law or if Foreign Investment Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any suit is instituted 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 party as promptly as reasonably practicable all information required for any application or threatened other filing to be instituted) made by the other party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other Party of any substantive communication received by such party from, or given by such party to, the U.S. Federal Trade CommissionCommission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other applicable U.S. or foreign Governmental Entity challenging and of any substantive communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby as violative and, subject to applicable Law, furnish the other party promptly with copies of any Antitrust Law or which would otherwise preventall correspondence, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub filings and communications between them and the Company will use its reasonable best efforts FTC, the DOJ, or any other Governmental Entity with respect to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this AgreementAgreement (other than Item 4(c) and Item 4(d) documents and subject to adequate measures for protection of commercially and/or competitively sensitive information); (iv) respond as promptly as reasonably practicable to any inquiries received from, including and supply as promptly as reasonably practicable any additional information or documentation that may be requested by the DOJ, FTC or by any other Governmental Entity in order respect of such registrations, declarations and filings or such transactions; and (v) permit the other Party to resolve such objections review any substantive communication given by it to, and consult with each other in advance, and consider in good faith the other Party’s reasonable comments in connection with, any communication, meeting or suits whichconference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any case if not resolvedproceeding by a private party, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the with any other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DatePerson; provided, howeverthat BidCo shall be solely responsible for the final content of any substantive communications with any applicable Governmental Entity. For purposes of this Agreement, that, notwithstanding anything to “Antitrust or Foreign Investment Law” means the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business Xxxxxxx Antitrust Act of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin1890, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7Xxxxxxx Antitrust Act of 1914, the Company will not take any actionHSR Act, the Federal Trade Commission Act of 1914 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 agree intended to refrain from taking any action(i) prohibit, pursuant to this Section 5.7(brestrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition or (ii) without the express written permission of Parentreview and approve investments made by entities based in other countries.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the MergerOffer, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as practicable and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to, or to cause their ultimate parent entity (i)(Aas such term is defined in the HSR Act) to, (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as practicable (and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after from the date of this Agreement), hereof) and (Bii) to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all or any other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesAntitrust Law. The parties will also shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, (D) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel/in-house counsel basis basis, if appropriate. Nothing Each party may, as each deems advisable and necessary, reasonably designate any such disclosures or provision of copies by one party to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and the information contained therein shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in this Section 5.7(a) shall require advance from the Company source of the materials or its Subsidiaries legal counsel; it being understood that materials provided pursuant to take this Agreement may be redacted (i) as necessary to comply with contractual obligations and (ii) as necessary to protect privileged attorney-client communications 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 Closingattorney work product.
(b) In furtherance Parent shall, and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, shall cause each of Parentits Subsidiaries and Affiliates to, Merger Sub and the Company will use its reasonable best efforts to resolve obtain any subject objections consents, clearances, or suits so approvals required under or in connection with the Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as practicable and, in any event, by or before the Outside Date, including (i) promptly complying with any requests for additional information (including any second request) by any Governmental Body and (ii) contesting and defending any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to permit consummate the Offer and the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof. Furthermore, Parent shall not take, and shall cause each of its Subsidiaries to not take, any action or omit to take any action that would reasonably be expected to materially delay or prevent consummation of the transactions contemplated by this Agreement, including . Parent shall pay all filing fees incurred by the parties in order connection with any filings which may be required by such party to resolve such objections or suits which, in obtain clearance under any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay Antitrust Law for the consummation of the Merger or Offer and the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding Merger. Notwithstanding anything to the contrary in this Section 5.76.6(b) or otherwise in this Agreement, neither Parent and Merger Sub nor any of its Affiliates shall not be obligated have any obligation to take any actionsoffer, negotiate, commit to, or agree to refrain from taking effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any actions, that, collectively, would have a material adverse effect on the combined business or all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent Spinco and the Company and their respective or any of its Subsidiaries (including the Retained SubsidiariesSurviving Corporation), taken as a whole, after giving effect to or any other restrictions on the activities of Parent Spin, or any of its Subsidiaries (including the Merger and the other transactions contemplated by this AgreementSurviving Corporation); provided, furtherhowever, that, notwithstanding anything that Parent shall take such actions with respect to the contrary Company (including, after the Effective Time, the Surviving Corporation) if such action (A) is necessary to obtain required clearances or waiting period expirations or terminations as may be required under the HSR Act or any Antitrust Laws by the Outside Date and (B) would not individually or in this Section 5.7the aggregate, reasonably be expected to be materially detrimental to the benefits to be derived by Parent and its Affiliates as a result of the Contemplated Transactions. In addition, the Company will shall not offer or commit to take any actionof such actions without Parent’s prior written consent, which includes taking or committing to take actions that limit Parent or any of its Subsidiaries (including the Surviving Corporation), as applicable, freedom of action with respect to, or agree their ability to refrain from taking retain, any actionof the businesses, pursuant employees, or assets of the Company. Parent shall not require the Company to, and the Company shall not be required to, take any action with respect to this Section 5.7(b) any consent decree, hold separate order or other applicable Law that binds the Company prior to the Effective Time. Neither Parent nor the Company shall enter any agreement with a Governmental Body not to consummate or to delay consummation of the Contemplated Transactions without the express prior written permission consent of Parentthe other party.
(c) Prior to the Acceptance Time, each party shall use commercially reasonable efforts to obtain any consents, approvals, or waivers of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions; provided that, in no event will the Company be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any consent, approval, or waiver required with respect to any such Contract.
Appears in 1 contract
Samples: Merger Agreement (Akouos, Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of Without limiting any other covenant in this Agreement, prior to each of the Effective TimeCompany, each party will on the one hand, and Parent and Merger Sub, on the other, shall use their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, and to do, or cause to be done as promptly as practicable, all things necessary, proper and advisable under applicable Laws to (i) consummate and make effective as promptly as practicable the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement. Subject to appropriate confidentiality protections, each of the Company, on the one hand, and Parent and Merger Sub, on the other, shall furnish to the other such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing.
(b) Each Party will use its reasonable best efforts to, and to cause each of its Subsidiaries and Affiliates to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws and regulations to consummate the Merger, the Distribution Merger and the other transactions contemplated by this Agreement Agreement. Without limiting the generality of the undertakings pursuant to this Section 6.3, each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall provide or cause to be provided as promptly as practicable to any applicable Governmental Authority information and documents requested by such Governmental Authority or necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, including filing any notification and report form and related material required under any Antitrust Law enforced by any Governmental Authority regarding pre-acquisition notifications for the purpose of competition reviews as promptly as practicable, but in no event later than ten (10) Business Days after the date hereof, and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under any Antitrust Law enforced by any Governmental Authority regarding pre-acquisition notifications for the purpose of competition reviews. Parent shall be responsible for any filing fees and other expenses incurred in connection with making any such filings and/or submissions; provided, that each Party shall be responsible for its fees and expenses in responding to any requests for additional information in connection therewith.
(c) Each of Parent and Merger Sub, on the one hand, and the Spin-Off Transaction AgreementsCompany, including using on the other hand, shall, in connection with the efforts referenced in Section 6.3(b) to obtain all requisite approvals and authorizations or the expiration of waiting periods for the transactions contemplated by this Agreement under any Antitrust Law, use its reasonable best efforts to obtain (i) cooperate in all necessary actions respects with each other in connection with any filing or non-actions, waivers, consents submission and approvals from Governmental Entitiesin connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information required action for any application or non-action under Antitrust Lawsother filing to be made by the other Party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other Party of any substantive communication received by such Party from, or given by such Party to, any Governmental Authority and of any substantive 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 the other Party 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 reasonably practicable to any inquiries received from, and to make all necessary registrations supply as promptly as reasonably 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 take all steps as may be necessary (v) permit the other Party to obtain such required waiverreview any substantive communication given by it to, consent and consult with each other in advance, and consider in good faith the other Party’s reasonable comments in connection with, any communication, meeting or approval from conference with any Governmental EntityAuthority or, in connection with any proceeding by a private party, with any other Person.
(d) No Party shall independently participate in any meeting or communication with any Governmental Authority where material issues would likely be discussed in respect of any such filings, investigation or other inquiry relating to Sections 6.3(b) or 6.3(c) without giving the other Parties’ reasonable prior notice of the meeting and, to the extent permitted by such Governmental Authority, a reasonable opportunity to attend and/or participate in such meeting or communication. In Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, the parties hereto agree to (i)(A) 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 of this Agreement)Parent shall, and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and shall cause its Subsidiaries to, use 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 as soon as practicable, and (ii) use their reasonable best efforts to take, or cause to be taken, all actions and steps necessary to do(i) resolve, avoid, or cause to be doneeliminate impediments or objections, all things necessaryif any, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other that may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby by this Agreement under any Antitrust Law or if by any suit is instituted Governmental Authority, including by agreeing to Antitrust Remedies that are not Burdensome Conditions or (ii) avoid the entry of, effect the dissolution of, and have vacated, lifted, reversed or threatened to be instituted) by the Federal Trade Commissionoverturned, the Antitrust Division of the Department of Justice any decree, order or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which judgment that would otherwise prevent, materially impede prohibit, restrict or materially delay the consummation of the transactions contemplated herebytransactions, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of enable the Parties to close the contemplated transactions contemplated by this Agreement, including expeditiously (but in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no event later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, ). The Company and its Affiliates shall cooperate with Parent and Merger Sub and use their reasonable best efforts in connection with the foregoing.
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require, or be construed to require, Parent or any of its Affiliates to (and the Company shall not be obligated and shall cause each of its Subsidiaries not to, without the prior written consent of Parent), agree to take (i) any actionssale, license, divestiture or other disposition or holding separate (through establishment of a trust or otherwise) of any capital stock, businesses, assets (tangible or intangible), properties or other interests of Parent, Parent’s Subsidiaries, the Company or its Subsidiaries, (ii) the imposition of any limitation, restriction or condition on the ability of Parent, Parent’s Subsidiaries, the Company or its Subsidiaries to conduct their respective businesses or own, acquire, hold or exercise full rights of ownership of any capital stock, businesses, assets (tangible or intangible), properties or other interests, (iii) the imposition of any limitation, restriction or condition on Parent, Parent’s Subsidiaries, the Company or its Subsidiaries under any Antitrust Law, or agree (iv) any material modification or waiver of the terms and conditions of this Agreement (clauses (i) through (iv), “Antitrust Remedies”), in each case to refrain from taking any actions, that, collectively, the extent such Antitrust Remedies would reasonably be expected to have a material adverse effect impact on (A) the combined business of the Company and its Subsidiaries taken as a whole following the Merger or (B) the assets, properties or business of Parent Spinco or Parent’s Subsidiaries (other than, after the Effective Time, the Company and the Company and their respective Subsidiaries Subsidiaries) (including the Retained Subsidiariesany such Antitrust Remedy under clause (A) or (B), taken as a whole“Burdensome Condition”).
(f) From the date of this Agreement through the date (i) of termination of the required waiting periods under all applicable Antitrust Laws and (ii) all approvals under applicable Antitrust Laws are obtained, after giving effect to the neither Parent Spin, the nor Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take Sub nor any action, of their Affiliates shall acquire or agree to refrain from taking acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any actionother manner, pursuant any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to this Section 5.7(bacquire any assets or equity interests, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation would reasonably be expected to materially hinder or delay, as applicable, the obtaining of the approvals required under applicable Antitrust Laws.
(g) without Notwithstanding anything herein to the express written permission contrary, commercially and/or competitively sensitive information and materials of Parenta Party may, at the election of a providing Party, be provided to the other Party 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.
Appears in 1 contract
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use its commercially reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement as soon as practicable and (ii) do all things necessary, proper or advisable under applicable Law laws and regulations to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoing, the parties hereto agree to (i)(A) 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 of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use 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 as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement at the earliest practicable date, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger; (B) defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger; and (C) using commercially reasonable best efforts to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement; provided, further, that, notwithstanding anything . Each of the parties hereto agrees to treat the receipt of the Merger Consideration in exchange for shares of Company stock pursuant to the contrary Merger as a taxable sale and purchase of Company stock for income tax purposes. With respect to any potential withholding tax under Section 1445 of the Internal Revenues Code of 1986, as amended (the "Code"), the parties hereto intend to rely on the exemption from such withholding tax pursuant to Code Section 897(c)(3) with respect to stockholders who beneficially own Common Stock representing five percent (5%) or less ownership in this Section 5.7the Company. Promptly after the date hereof, the Company will make a determination as to whether the Company is able to supply a certificate in accordance with Treas. Reg. 1.1445-2(c)(3) that the Company is not take a United States real property holding corporation so that no withholding will be required under Code Section 1445. Notwithstanding the foregoing, except as otherwise expressly provided by this Agreement, none of the parties hereto nor any actionof their respective Affiliates shall be obligated to make any payments or otherwise pay any consideration to any third party to obtain any applicable consent, waiver, settlement or agree approval in order to refrain from taking any action, pursuant to this Section 5.7(b) without consummate the express written permission of Parenttransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Icahn Carl C)
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law) to consummate the Merger, the Distribution Merger and the other transactions contemplated by this Agreement at the earliest practicable date, including: (i) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the Spin-Off Transaction Agreements, including taking of such actions as are necessary to obtain any requisite consent or expiration of any applicable waiting period under the HSR Act or any other Antitrust Law; (ii) using its reasonable best efforts to obtain defend all necessary actions lawsuits and other proceedings by or non-actions, waivers, consents before any Governmental Entity challenging this Agreement or the consummation of the Merger; and approvals from (iii) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law raised by any Governmental Entities, including Entity and to prevent the entry of any required action or non-action under Antitrust Lawscourt order, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiverhave vacated, consent lifted, reversed or approval from overturned any injunction, decree, ruling, order or other action of any Governmental Entity. Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of the foregoingprovisions of Section 5.8(a), each of the parties hereto agree parties, as applicable, agrees to prepare and file as promptly as practicable, and in any event by no later than ten (i)(A10) make Business Days from the date of this Agreement an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (Act. Parent shall pay all filing fees and in any event within ten (10) Business Days after other charges for the date of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods filings required under the HSR Act by the Company and Parent.
(c) The parties shall keep each other apprised with respect to the matters set forth in this Section 5.8 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law and liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as soon as practicableto the contents of all communications with such Governmental Entities. In particular, to the extent permitted by Law or Governmental Entity, no party will make any notification in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide furnishing to the other party all information within its possession that is required for any application or other filing to be made by the other party pursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the matters set forth in this Section 5.8 and ensuring to the extent permitted by Law or Governmental Entity that each of the parties is entitled to attend any material meetings with or other appearances before any Governmental Entity with respect thereto;
(iv) consulting and cooperating with one another in advance, any connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any the Antitrust Laws. Without limiting the foregoing, ; and
(v) without prejudice to any rights of the parties hereto agree (A) to give each hereunder, consulting and cooperating in all respects with the other reasonable advance notice of in defending all meetings with lawsuits and other proceedings by or before any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to challenging this Agreement or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated herebyby this Agreement.
(d) Notwithstanding anything else in this Section 5.8 all Parties agree that it is Parent’s sole right to devise the strategy for all filings and communications in connection with any filing pursuant to the HSR Act and any other filings and submissions under applicable Antitrust Laws including material communications and negotiations with the Federal Trade Commission, including selling, holding separate the Department of Justice or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or any other disposition of, Governmental Entity regarding any of its assets or the assets transactions contemplated by this Agreement, so long as such strategy complies with the terms and conditions of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; this Agreement and provided, however, that, notwithstanding anything Parent consults and considers in good faith the views of the Company.
(e) In addition, the Parties shall (i) take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws and other applicable Laws to consummate the transactions contemplated by this Agreement, including using its best efforts to obtain the expiration of all waiting periods and obtain all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement, and (ii) not enter into or consummate any Contracts for an acquisition (by stock purchase, merger, consolidation, purchase of assets, license or otherwise) of any ownership interest, assets or rights in or of any Person to the contrary in this Section 5.7, Parent and Merger Sub shall not extent such action would reasonably be obligated expected to take any actions, prevent or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on materially delay the combined business consummation of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement.
(f) Notwithstanding anything to the contrary set forth in this Agreement, the obligations of Parent under this Section 5.8 shall include Parent committing itself and its Affiliates to: (i) selling, divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent and its Subsidiaries and Affiliates; (ii) agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time; (iii) permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company or any of its Subsidiaries prior to the Effective Time; (iv) licensing, holding separate or entering into similar arrangements with respect to its respective assets or the assets of the Company or conduct of business arrangements or terminating any and all existing relationships and contractual rights and obligations and (v) obtain prior approval or other approval from a Governmental Entity, or submit a notification or otherwise notify any Governmental Entity, prior to consummating any future transaction (other than the transactions contemplated by this Agreement) as a condition to obtaining any and all expirations of waiting periods under the HSR Act or other Antitrust Laws or consents from any Governmental Entity necessary to consummate the transactions contemplated hereby, provided, further, that, notwithstanding anything to the contrary herein, nothing in this Section 5.7Section 5.8 shall require any Party or any of its respective Affiliates to agree to any condition, take any measure or action or enter into any agreement that is not contingent on the Closing, and, provided, further, that notwithstanding anything to the contrary contained in this Agreement, Parent shall not be required to take any actions that, individually or in the aggregate, would reasonably be expected to have (A) Company Material Adverse Effect or (B) a Parent Material Adverse Effect, in each case, as determined by Parent in good faith.
(g) Notwithstanding the foregoing, commercially and/or competitively sensitive information and materials of a party will be provided to the other party 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.
(h) For purposes of this Agreement, “Antitrust Law” means the Sxxxxxx Act, as amended, the Company will not take any actionCxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended and all other Laws that are designed or agree intended to refrain from taking any actionprohibit, pursuant to this Section 5.7(b) without restrict or regulate actions having the express written permission purpose or effect of Parentmonopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law laws and regulations to consummate the Merger, the Distribution Merger and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. Agreement.
(b) In furtherance and not in limitation of the foregoingprovisions of subsection (a) above, Parent, Merger Sub and the parties hereto agree to (i)(A) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act Company shall as promptly as practicable (reasonably practicable, and in any event within ten (10) Business Days after business days of the date hereof, duly file with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “Antitrust Division”) the notification and report form required under the HSR Act with respect to the transactions contemplated by this Agreement), Agreement and (B) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to under the HSR Act and use its reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to cause consistent with this Section 6.8. Each of Parent and the expiration Company shall (i) promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or termination any other Governmental Entity regarding any of the applicable waiting periods under the HSR Act as soon as practicabletransactions contemplated by this Agreement, and (ii) use reasonable best efforts respond as promptly as reasonably practicable under the circumstances, after consultation with the other party, to takeany inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from either Governmental Entity, (iii) not participate, or cause permit their affiliates to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one anotherparticipate, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made substantive meeting or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings discussion with any Governmental Entity relating to any Antitrust Lawsin connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, (B) to the extent permitted not prohibited by such Governmental Entity, to give each gives the other an party the opportunity to participate in each of such meetingsattend and participate, (Civ) not extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to the extent practicablebe unreasonably withheld, to give each other reasonable advance notice of all substantive oral communications conditioned or delayed) and (v) not enter into any agreement with any Governmental Entity relating not to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify consummate the transactions contemplated by this Agreement without the prior written consent of the other party of the substance of (such communicationconsent not to be unreasonably withheld, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to conditioned or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closingdelayed).
(bc) In furtherance and not in limitation of the covenants of the parties contained in subsections (a) and (b) of this Section 5.7(a)6.8, if Parent and the Company shall use their respective reasonable best efforts to avoid the entry of, or to have vacated, lifted, reversed or overturned, any objections are asserted injunction, judgment, order or decree that would restrain, prevent or delay the Closing, including, with respect to Parent, Parent’s taking all such actions, including (y) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the transactions contemplated hereby under sale, divestiture or disposition of such assets or businesses of the Company or Parent (or any Antitrust Law of their respective subsidiaries) and (z) otherwise taking or if committing to take actions that limit the Company or Parent or their respective subsidiaries’ freedom of action with respect to, or its ability to retain, one or more of its or its subsidiaries’ 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 is instituted (or threatened to be instituted) by the Federal Trade Commissionproceeding, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede have the effect of preventing or materially delay delaying the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of ParentClosing.
Appears in 1 contract
Samples: Merger Agreement (Ecollege Com)
Further Action; Efforts. (a) Prior to the Effective Time, the Company shall use its reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts to which the Company or any of its Subsidiaries is a party as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Transactions. Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will of the Company, Parent and Merger Sub shall, as promptly as practicable, use its reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityTransactions. In furtherance and not in limitation of the foregoing, each of the parties hereto agree to Company, Parent and Merger Sub shall (i)(Ai) make an all appropriate filing of a Notification filings and Report Form pursuant submissions (and filings and submissions considered by Parent to be advisable) under the HSR Act and with any other Governmental Authority pursuant to any other applicable Antitrust Laws or otherwise, as promptly as practicable (and practicable, but in any no event within ten (10) later than 10 Business Days after the date of this Agreement)Agreement with respect to filing under the HSR Act, and (B) supply shall make as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other actions necessaryappropriate submissions under other applicable Antitrust Laws, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to takeobtain as promptly as practicable the termination of any waiting period under the HSR Act and any applicable foreign Antitrust Laws, or cause (iii) cooperate and consult with each other in (A) determining which filings are required to be takenmade prior to the Effective Time with, all actions and to dowhich material consents, approvals, permits, notices or cause authorizations are required to be doneobtained prior to the Effective Time from, Governmental Authorities in connection with the execution and delivery of this Agreement and consummation of the Transactions and (B) timely making all things necessarysuch filings and timely seeking all such consents, proper approvals, permits, notices or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in authorizations.
(b) In connection with, and provide to without limiting, the efforts referenced in Section 6.10(a), each of the Company, on the one hand, and Parent and Merger Sub, on the other parties hand, will (i) cooperate in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto all respects with each other in connection with proceedings under any filing or relating to submission and in connection with any Antitrust Laws. Without limiting investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the foregoingother reasonably informed of any communication received by it from, or given by it to, the parties hereto agree Federal Trade Commission (Athe “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other United States or foreign Governmental Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding the Transactions and (iii) permit the other to give review any communication given by it to, and consult with each other reasonable in advance notice of all meetings any meeting or conference with, the FTC, the DOJ or any other Governmental Authority (other than the Defense Security Service) or, in connection with any Governmental Entity relating to proceeding by a private party, with any Antitrust Lawsother Person, (B) and to the extent permitted by the FTC, the DOJ or such other applicable Governmental EntityAuthority (other than the Defense Security Service) or other Person, to give each the other an the opportunity to attend and participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review meetings and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closingconferences.
(bc) In furtherance and not in limitation of the covenants of the parties Parties contained in Section 5.7(a6.10(a) and Section 6.10(b), if any objections are asserted with respect to the transactions contemplated hereby Transactions under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade CommissionFTC, the Antitrust Division of the Department of Justice DOJ or any other applicable Governmental Entity Authority or any private party challenging any of the transactions contemplated hereby Transactions as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyTransactions, each of Parent, Merger Sub and the Company will shall use its reasonable best efforts to resolve any subject such objections or suits so as to permit consummation of the transactions contemplated by this AgreementTransactions, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions.
(d) 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 Merger or any other Transaction, each of Parent, Merger Sub and the Company shall cooperate in all respects with each other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting and use its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, respective reasonable best efforts to vigorously contest and resist any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceedingproceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in each case no later than effect and that prohibits, prevents or restricts consummation of the Outside DateTransactions; provided, however, thatthat no Party shall make any offer, notwithstanding anything acceptance or counter-offer to, or otherwise engage in discussions with, any Governmental Authority with respect to any proposed settlement, consent decree, commitment or remedy, or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested or agreed to by the other Parties, which agreement shall not be unreasonably withheld, delayed or conditioned. Each Party shall use its reasonable best efforts to provide full and effective support the other Parties in all material respects in all such negotiations and discussions to the contrary extent reasonably requested by any such other Party.
(e) Notwithstanding the foregoing or any other provision of this Agreement, (i) nothing in this Section 5.76.10 shall limit a Party’s right to terminate this Agreement pursuant to Section 8.01 and (ii) nothing in this Agreement shall obligate Parent, Parent and Merger Sub shall not be obligated or any of their respective Affiliates to take any actionsagree to (A) sell, hold separate or otherwise dispose of all or a portion of its respective business, assets or properties, or agree conduct its business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to refrain from taking any actionsContract any material accommodation, that(C) commence or defend any Action or claim in respect of any threatened Action, collectively(D) limit in any manner whatsoever the ability of such entities to conduct, would have a material adverse effect on the combined business own, operate or control any of their respective businesses, assets or properties or of the businesses, properties or assets of the Company and its Subsidiaries or (E) waive any of the conditions set forth in ARTICLE VII of this Agreement. Without the prior written consent of Parent, none of the Company or any of its Subsidiaries shall, in response to any objections asserted with respect to the Transactions under any Antitrust Law or any suit instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Authority or any private party challenging any of the Transactions as violative of any Antitrust Law, (A) sell, hold separate or otherwise dispose of all or a portion of their respective businesses, assets or properties, or conduct their business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to any Contract any material accommodation, (C) commence or defend any Action or claim in respect of any threatened Action or (D) limit in any manner whatsoever the ability of such entities to conduct, own, operate or control any of their respective businesses, assets or properties.
(f) Without limiting the generality of Section 6.10(a), each of Parent Spinco and the Company and their respective Subsidiaries shall use its reasonable best efforts to submit a draft joint voluntary notice and, following the receipt of any comments thereto, a final joint voluntary notice, to CFIUS (including the Retained Subsidiaries), taken “Exon-Xxxxxx Filing”) as a whole, after giving effect to promptly as reasonably practicable following the date of this Agreement. Parent Spin, the Merger and the other transactions contemplated by this Agreement; providedCompany shall cooperate in preparing, further, that, notwithstanding anything to pre-filing and filing with CFIUS a joint voluntary notice of the contrary Transactions in this Section 5.7, accordance with applicable Law. Each of Parent and the Company will not take shall use its reasonable best efforts to respond as promptly as reasonably practicable (but in any action, event within the time required to avoid possible rejection or agree to refrain from taking any action, pursuant to this Section 5.7(b) without deferred acceptance of the express written permission of Parent.Exon-Xxxxxx Filing under
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will hereto shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated by Contemplated Transactions and the Parent Share Issuance and the issuance of the New Parent Equity Awards as soon as practicable. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to, or to cause their ultimate parent entity (i)(Aas such term is defined in the HSR Act) to, (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Merger within fifteen (and in any event within ten (1015) Business Days after the date of the Agreement, (ii) make, or cause to be made, the filings, forms, submissions, applications, licenses or notices required or advisable (A) under any applicable licensing Laws, (B) in connection with any review or investigation pursuant to any applicable foreign direct investment Laws of the United States and non-U.S. jurisdictions, (C) under the ASX Listing Rules and the Corporations Act, or (D) to obtain the Australian Waivers, in each case as promptly as practicable after the date of this Agreement), Agreement and (Biii) supply as promptly as practicable any additional information and documentary material that may be requested by a Governmental Body pursuant to the HSR Act and use or any other applicable Law. Parent shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods under the HSR Act as soon as practicableCompany, and (ii) use reasonable best efforts to take, be responsible for making any filing or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper notification required or advisable under applicable Law foreign Antitrust Laws (final or in draft as the case may be) as promptly as possible after the date of this Agreement, unless otherwise agreed to obtain all other required waivers, consents by the Company and approvals from Governmental EntitiesParent in writing. The parties will hereto shall also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and subject to appropriate mechanisms to deal with the exchange of competitively sensitive information, provide to the other parties hereto in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, to the extent permitted by applicable Law, the parties hereto agree (A1) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Lawsthe Contemplated Transactions, (B2) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, unless prohibited by such Governmental Body, (C3) to the extent reasonably practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Lawsthe Contemplated Transactions, (D4) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Lawsthe Contemplated Transactions, to promptly notify the other party of the substance of such communication, (E5) to provide each other with a reasonable advance opportunity to review and comment upon (and to consider in good faith any reasonable comments made by the other party upon) all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws the Contemplated Transactions and (F6) to provide each other with copies of all written communications to or from any Governmental Entity Body relating to any Antitrust Lawsthe Contemplated Transactions. Any such disclosures or provision of copies by one party to the other may be made made, subject to restrictions to address confidential and/or competitively sensitive information, and on an outside counsel basis basis, if appropriate. Nothing Notwithstanding anything to the contrary contained in this Section 5.7(a) Agreement, Parent shall require have the right to control the strategy for obtaining all approvals and clearances sought by any filings applicable to the HSR Act and shall have the right to take the lead in coordinating the timing and content of all productions to, and all such filings, meetings and communications with, any Governmental Body in connection with obtaining any such approvals and clearances; provided Parent shall consider in good faith the views of the Company or its Subsidiaries to take or agree to take any action with respect to its business such strategy, coordination, content, analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or operations unless the effectiveness of submitted in connection with obtaining any such agreement or action is conditioned upon the Closingapprovals and clearances.
(b) In furtherance Without limiting the generality of Section 5.09(a), Parent shall, and not shall cause each of its Subsidiaries and Affiliates to, use reasonable best efforts to take any and all actions necessary to obtain any consents, clearances, or approvals required under or in limitation connection with the HSR Act and any other federal or state law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of lessening competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur prior to the Termination Date, including (i) promptly complying with any requests for additional information (including any second request) by any Governmental Body, (ii) if necessary to obtain clearance by any Governmental Body before the Termination Date, offering, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the covenants capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the parties contained in Section 5.7(aSurviving Corporation and its Subsidiaries), if and any objections are asserted other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) (each, a “Remedy”); provided that, notwithstanding anything to the contrary set forth in this Agreement, neither Parent nor any of its Subsidiaries shall be required to undertake or agree to undertake any (A) Burdensome Condition or (B) any other action with respect to any Remedy if such Remedy is not conditioned upon effectiveness of the transactions contemplated hereby Contemplated Transactions; provided, further, that, upon Parent’s request, the Company shall take any of the actions referred to above (or agree to take such actions) if such actions are only effective from and after the Effective Time; provided, further that the Company shall not take any actions referred to above (or agree to take such actions), without the written consent of Parent.
(c) Parent and the Company shall not take, and shall cause each of its Subsidiaries to not take, any action or omit to take any action that would reasonably be expected to materially delay clearance by any Governmental Body under any Antitrust Laws or to make clearance by any Governmental Body under Antitrust Laws before the Termination Date materially less probable. Each of Parent and the Company shall bear any fees payable to any Governmental Body in connection with any filings that are made by such party to obtain clearance under any Antitrust Law for the consummation of the Merger.
(d) Without limiting the obligations in clauses (a) and (b) of this Section 5.09, in the event that any administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyMerger, each of Parent, Merger Sub Parent and the Company will shall cooperate in all respects with each other and shall use its reasonable best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit have vacated, lifted, reversed, or overturned any Governmental Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions Merger.
(e) Prior to the Effective Time, except as contemplated by this Section 5.09(f), each party hereto shall use commercially reasonable efforts to obtain any consents, approvals, or waivers of third parties with respect to any Contracts to which it or any of its respective Subsidiaries is a party (including making any payments that would be required in connection with a transfer of a “Substantial Ownership Interest” as defined in the Angel Loan Fund Agreement) as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions; provided, that, in no event will the Company, Parent or its applicable Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other financial accommodation to any third party to obtain any consent, approval, or waiver required with respect to any such Contract.
(f) The Company shall, and shall use its commercially reasonable efforts to cause its Representatives to, upon the reasonable request of Parent, provide reasonable cooperation to Parent in connection with (i) an amendment or waiver, in a form reasonably satisfactory to the Company, to the Existing Credit Agreement to waive the “Change in Control” and any other “Event of Default” (each as defined in the Existing Credit Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay as applicable) that will occur upon the consummation of the Merger in order to permit the consummation of the Merger (the “Credit Agreement Amendment”) or (ii) the entry into a new credit agreement (the “New Credit Agreement”), to be effective no earlier than the Effective Time, by Parent or the other transactions contemplated herebySurviving Corporation or any of their Subsidiaries (including requesting, including sellingand using commercially reasonable efforts to cause, holding separate the Company’s Representatives to furnish any customary certificates in connection with the Credit Agreement Amendment or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting New Credit Agreement); provided, that (A) the saleCompany shall not be required to pay, holding separate prior to the Effective Time, any fee, penalty or other disposition ofconsideration or make any other financial accommodation to any third party, or pay Parent’s commitment or other similar fee in connection with the Credit Agreement Amendment or the New Credit Agreement, (B) the effectiveness of any documentation executed by the Company, with respect to the Credit Agreement Amendment or the New Credit Agreement, the attachment of any Lien to any assets of the Company or any of its assets Subsidiaries, or any payoff of existing indebtedness shall be subject to the consummation of the Merger, and (C) no director or officer of the Company shall be required to execute any agreement, certificate, document or instrument with respect to the Credit Agreement Amendment or New Credit Agreement that would be effective prior to the Closing (other than certifications of the financial statements). Parent and Xxxxxx Sub each acknowledge and agree that it is not a condition to Parent’s or Merger Sub’s obligations to consummate the Merger or to any of their other obligations under this Agreement that the Credit Agreement Amendment or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything New Credit Agreement be executed.
(g) Subject to the contrary in conditions and upon the terms of this Section 5.7Agreement, each of Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company shall use commercially reasonable efforts to obtain each approval, consent, ratification, permission and their respective Subsidiaries (including waiver of authorization required to be obtained by Parent or the Retained Subsidiaries), taken as Company from a whole, after giving effect Governmental Body in relation to the Parent Spin, consummation of the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of ParentContemplated Transactions.
Appears in 1 contract
Samples: Merger Agreement (Sezzle Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party Party will use reasonable its best efforts to (and, in the case of BidCo, use its best efforts to cause each of its subsidiaries and Affiliates (collectively, the "BidCo Group") to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws and regulations to consummate the Merger, the Distribution Acquisition and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityAgreement. In furtherance and not in limitation of the foregoing, the parties each Party hereto agree agrees to make (i)(Aor cause to be made) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and the foreign antitrust and investment filings listed in Section 6.5(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby as promptly as practicable (and in any event within ten (10) Business Days after of the date hereof with respect to any filing made pursuant to the HSR filing and as promptly as practicable for the other filings listed in Section 6.5(a) of this Agreement), the Company Disclosure Letter and (B) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any Antitrust Law and use reasonable best efforts to take any and all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and to obtain approval required under any other Antitrust Law as soon as practicable.
(b) BidCo, on the one hand, and (iithe Company, on the other hand, shall, in connection with the efforts referenced in Section 6.5(a) to obtain all requisite approvals and authorizations or expiration of waiting periods for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, use its reasonable best efforts to take(i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable Law, furnish to the other party as promptly as reasonably practicable all information required for any application or other filing to be made by the other party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other Party of any substantive communication received by such party from, or cause given by such party to, the U.S. Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other U.S. or foreign Governmental Entity and of any substantive 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 be takenapplicable Law, furnish the other party promptly with copies of all actions correspondence, filings and to docommunications between them and the FTC, the DOJ, or cause any other Governmental Entity with respect to the transactions contemplated by this Agreement (other than Item 4(c) and Item 4(d) documents and subject to adequate measures for protection of commercially and/or competitively sensitive information); (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be donerequested by the DOJ, all things necessaryFTC or by any other Governmental Entity in respect of such registrations, proper declarations and filings or advisable under applicable Law such transactions; and (v) permit the other Party to obtain all review any substantive communication given by it to, and consult with each other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one anotherin advance, and consider in good faith the views of one another, other Party's reasonable comments in connection with, and provide to any communication, meeting or conference with, the FTC, the DOJ or any other parties in advanceGovernmental Entity or, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any proceeding by a private party, with any other Person; provided, that BidCo shall be solely responsible for the final content of any substantive communications with any applicable Governmental Entity. For purposes of this Agreement, "Antitrust Laws. Without limiting Law" means the foregoingSxxxxxx Antitrust Act of 1890, the parties hereto agree Cxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 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 (Ai) to give each prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition or (ii) review and approve investments made by entities based in other reasonable advance notice of all meetings countries.
(c) No Party shall independently participate in any substantive meeting or communication with any Governmental Entity in respect of any such filings, investigation or other inquiry relating to any Antitrust LawsSection 6.5(a) or Section 6.5(b) without giving the other Parties sufficient prior notice of the meeting and, (B) to the extent permitted by such Governmental Entity, to give each other an the opportunity to attend and/or participate in each of such meetings, (C) substantive meeting or communication. Notwithstanding anything to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing contrary set forth in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In Agreement, and in furtherance and not in limitation of the covenants foregoing, BidCo shall, and shall cause each member of the parties contained in Section 5.7(a)BidCo Group to, take any and all steps necessary to (x) resolve, avoid, or eliminate impediments or objections, if any objections are any, that may be asserted with respect to the transactions contemplated hereby by this Agreement under any Antitrust Law or if (y) avoid the entry of, effect the dissolution of, and have vacated, lifted, reversed or overturned, any suit decree, order or judgment that would prevent, prohibit, restrict or delay the consummation of the contemplated transactions, so as to enable the Parties to close the contemplated transactions expeditiously (and, for the avoidance of doubt, so as to avoid an in-depth or second-phase review by the relevant Governmental Entity) (but in no event later than the End Date), including, but without limiting the foregoing, (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of BidCo, BidCo's subsidiaries, BidCo's Affiliates, or the Company or its subsidiaries or any interest therein and (ii) otherwise taking or committing to take actions that would limit BidCo's, BidCo's subsidiaries, BidCo's Affiliates, or the Company'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 BidCo, BidCo's subsidiaries, BidCo's Affiliates, or the Company or its subsidiaries or any interest or interests therein, provided that any such action is conditioned upon (and shall not be completed prior to) the consummation of the Acquisition and the other transactions contemplated by this Agreement.
(d) Subject to the obligations under Section 6.5(c), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Federal Trade Commission, the Antitrust Division of the Department of Justice Acquisition or any other applicable Governmental Entity challenging transaction contemplated by this Agreement, or any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions other agreement contemplated hereby, each of Parent, Merger Sub BidCo and the Company will shall, and BidCo shall cause each member of the BidCo Group to, cooperate in all respects with each other and use its reasonable respective best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit 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.
(e) Neither BidCo nor any member of the BidCo Group shall acquire or agree to acquire, including in order by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to resolve acquire any assets or equity interests, if the entering into of a definitive agreement relating to, or the consummation of such objections acquisition, merger or suits which, in any case if not resolved, could consolidation would reasonably be expected to preventto: (i) impose any material delay in the obtaining of, materially impede or materially delay increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; providedor (iii) materially delay or prevent the consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding the foregoing, further(i) BidCo shall direct, thatin consultation with the Company and after considering in good faith the Company's views, notwithstanding anything strategy and timing, proceedings and other activities with respect to seeking any actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby (provided that no Party may enter into a so-called timing agreement with any Governmental Entity without the consent of the other Party), (ii) the Company shall, and shall cause each of its subsidiaries to, use reasonable best efforts to take such actions as reasonably requested by BidCo in connection with obtaining any such actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers and (iii) BidCo shall have the sole and exclusive right, in consultation with the Company and after considering in good faith the Company's views, to propose, negotiate, offer or commit to make or effect any divestitures, dispositions or licenses of any assets, properties, products, rights, services or businesses, or to agree to any other remedy, requirement, obligation, condition or restriction related to the contrary conduct of BidCo's and its HSR Affiliates' (as such term is defined by the HSR Act) or the Company's and its subsidiaries' businesses in order to resolve any Governmental Entity's objections to or concerns about the transactions contemplated by this Section 5.7Agreement.
(g) Notwithstanding the foregoing, commercially and/or competitively sensitive information and materials of a Party will be provided to the Company will not take any actionother Party on an outside counsel-only basis (or by otherwise taking appropriate steps to safeguard the information and comply with applicable Law) while, or agree if requested in writing by the other Party and to refrain from taking any actionthe extent feasible, pursuant making a version in which the commercial and/or competitively sensitive information has been redacted available to this Section 5.7(b) without the express written permission of Parentother Party.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain including: (i) obtaining all necessary actions or non-actions, waivers, consents consents, qualifications and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, Entities and to make making all necessary registrations and registrations, filings and take notifications and taking all reasonable steps as may be necessary to obtain such required waiveran approval, consent clearance, non-action letter, waiver or approval exemption from any Governmental EntityEntity (including under the HSR Act and the Requisite Regulatory Approvals); (ii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iii) executing and delivering any additional documents or instruments reasonably necessary to consummate the Transactions and to carry out this Agreement. In furtherance and not in limitation of the foregoing, the parties hereto agree each party agrees to (i)(A) make make, if required, appropriate filings and registrations under applicable Regulatory Laws and Insurance Laws. Each party agrees to make, if required, an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within thirty (and in any event within ten (1030) Business Days days after the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act and use reasonable best efforts to take all other reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts including by requesting early termination of the waiting period provided for in the HSR Act. Each party agrees to takemake, if required, appropriate filings of Applications for Approval of Acquisition of Control Statements, or cause “Form A” statements, and all related filings, with respect to the Transactions with the applicable Insurance Regulators, as applicable, within thirty (30) Business Days after the date hereof; provided, however, that any required pre-acquisition notice (Form E) filings, Form E exemption filings, and all related applications and filings with respect to the Transactions shall be taken, all actions submitted within forty (40) Business Days after the date hereof. Each party agrees to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be reasonably requested by any Insurance Regulator pursuant to the Insurance Laws and to do, or cause to be done, take all things other reasonable actions necessary, proper or advisable under applicable Law to obtain all other required waivers, the applicable consents and approvals from of the applicable Insurance Regulators as soon as practicable.
(b) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with and without limiting the obligations to use certain efforts referenced in Section 5.5(a), to the extent relating to the requisite approvals, authorizations and clearances for the Transactions under the HSR Act and the other Regulatory Laws and the Insurance Laws, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) keep the other reasonably informed of any communication 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”), any Insurance Regulator or any other Governmental EntitiesEntity and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions, (iii) permit the other a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting, discussion or conference with, the FTC, the DOJ, any Insurance Regulator or any other Governmental Entity or, in connection with any Action by a private party, with any other Person, and, to the extent permitted by the FTC, the DOJ, such Insurance Regulator or such other applicable Governmental Entity or other Person, as applicable, give the other the reasonable opportunity to attend and participate in such meetings, discussions and conferences solely to the extent such meetings, discussions and conference relate to this Agreement, the Merger or the other Transactions, and (iv) to the extent practicable and subject to the other provisions in this Section 5.5, attempt to confer in good faith in order to (A) exchange and review respective views and positions with the other as to potential Materially Burdensome Conditions and (B) discuss and present to, and engage with, the applicable Governmental Entity regarding any approaches or actions that could mitigate the scope or impact of a potential Materially Burdensome Condition so that it does not become a Materially Burdensome Condition. Parent and the Company shall promptly advise each other upon receiving any communication, including promptly furnishing each other copies of any written or electronic communication, and shall promptly advise each other when any such communication causes such party to believe that there is a reasonable likelihood that any requisite approval, authorization or clearance for the Transactions under the HSR Act or any Requisite Regulatory Approval will not be obtained or that the receipt of any such approval, authorization or clearance or Requisite Regulatory Approval will be materially delayed or conditioned or impose or require a Materially Burdensome Condition. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto party, including reasonable access to any materials submitted in connection with any proceedings under or relating to the HSR Act or any Antitrust Lawsother applicable Regulatory Law, including any proceeding under 16 C.F.R. § 803.20. Notwithstanding anything to the contrary in this Section 5.5, no party will have any obligation to share any trade secret or other competitively sensitive information with the other party. Such materials and the information contained therein shall be given only to the outside counsel for matters relating to Regulatory Law of the recipient and will not be disclosed by such outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates, unless express permission is obtained in advance from the Company or Parent, as the case may be, or its outside legal counsel. Each of the Company and Parent shall cause its respective outside legal counsel for matters relating to Regulatory Law to comply with this Section 5.5(b).
(c) Without limiting the foregoingany other obligations of Parent hereunder, the parties hereto agree (A) Parent will respond to give each other reasonable advance notice of all meetings with and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub Transactions and the Company will use its reasonable best efforts to resolve take any subject objections and all action necessary to ensure that each requisite approval, authorization or suits so as to permit consummation of clearance under the transactions contemplated HSR Act and each Requisite Regulatory Approval is obtained by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceedingOutside Date, in each case no later than the Outside Date; providedcase, however, that, notwithstanding without imposing or requiring a Materially Burdensome Condition.
(d) Notwithstanding anything in this Agreement to the contrary in this Section 5.7contrary, no Parent and Merger Sub Company shall not be obligated to, and no Acquired Company shall, without the prior written consent of Parent at its sole discretion, consent to, take or refrain from taking, or offer or commit or consent to take any actions, or agree to refrain from taking (A) any actionsaction that involves (i) making any divestiture or disposition of any portion of any business or assets, that, collectively, would have a material adverse effect on the combined (ii) licensing any portion of any business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.assets,
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Regulatory Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsTransactions, and no party hereto shall fail to make all necessary registrations and filings and take all steps as may or cause to be necessary taken any action that would reasonably be expected to obtain such required waiverprevent, consent materially impede or approval from any Governmental Entitymaterially delay the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to make (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (and in any event with respect to the Transactions within ten (10) Business Days after from the date of this Agreement), hereof (unless a later date is mutually agreed between the parties) and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as reasonably practicable, and including by requesting early termination of the waiting period provided for in the HSR Act, (ii) use reasonable best efforts appropriate filings under any other Regulatory Law with respect to take, or cause to be taken, all actions the Transactions as soon as reasonably practicable and to do, or cause to be done, all things (iii) any other necessary, proper or advisable registrations, filings and notices with respect to the Transactions. Subject to applicable Law, and except as required by any Governmental Entity, the Company shall not agree to extend any waiting period under the HSR Act or any other Regulatory Law applicable Law to obtain all other required waivers, consents and approvals from Governmental Entitiesthe Transactions without the prior written consent of Parent. The filing fee for the Notification and Report Forms filed under the HSR Act and any other Regulatory Law filings in connection with the Transactions required pursuant to this Section 5.6(a) shall be split fifty percent (50%) by Parent and fifty percent (50%) by the Company.
(b) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Subsidiaries or Affiliates be required to (and the Company and its Subsidiaries and Affiliates shall not, without Parent’s prior written consent) (i) propose, negotiate, commit to, and/or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, transfer, license, disposition, or hold separate (through the establishment of a trust or otherwise) of any assets, properties, or businesses of Parent or its Subsidiaries or Affiliates or of the assets, properties, or businesses to be acquired pursuant to this Agreement, (ii) terminate, modify, or assign existing relationships, Contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) change or modify any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise take or commit to take any other action that would limit Parent’s or its Subsidiaries’ or Affiliates’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement.
(c) In addition, if any action or proceeding is instituted (or threatened) challenging the Transactions as violating any Regulatory 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 Transactions illegal or otherwise delay or prohibit the consummation of the Transactions, the parties will also consult shall have no obligation to take any action to contest, defend or litigate any such claim, cause of action, proceeding, decree, order, Judgment or injunction.
(d) Each of Parent, Merger Sub I and cooperate with Merger Sub II, on the one anotherhand, and consider in good faith the views of one anotherCompany, on the other hand, shall, in connection withwith obtaining requisite approvals and authorizations for the Transactions under the HSR Act or any other Regulatory Law, and provide use its commercially reasonable efforts to the (i) cooperate in all respects with each other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under any filing or relating to submission and in connection with any Antitrust Laws. Without limiting investigation or other inquiry, including any Action initiated by a private party, (ii) promptly notify the foregoingother party of any substantive communication made or received by Parent or the Company, as the parties hereto agree (A) to give each other reasonable advance notice of all meetings with case may be, from any Governmental Entity relating and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions (iii) subject to applicable Law, permit the other party a reasonable opportunity to review any Antitrust Lawssubstantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or private party, and (Biv) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify gives the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review attend or participate. Notwithstanding the foregoing, the Company and comment upon all written communications (including Parent may, as each deems advisable and necessary, reasonably designate any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party competitively sensitive material provided to the other may side under this Section 5.6(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be made on an given only to the outside counsel basis if appropriate. Nothing of the recipient and will not be disclosed by outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates unless express permission is obtained in this Section 5.7(a) shall require advance from the source of the materials (the Company or Parent, as the case may be) or its Subsidiaries legal counsel. Each of the Company and Parent shall cause its respective counsel to take or agree to take any action comply with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closingthis Section 5.6(d).
(be) In furtherance During the period from the date of this Agreement until the Effective Time, except as required by this Agreement and not except as set forth in limitation Section 5.6(e) of the covenants Parent Disclosure Letter, Parent and its Affiliates shall not, without the prior written consent of the parties contained Company, engage in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under action or enter into any Antitrust Law transaction or if permit any suit is instituted (or threatened action to be instituted) taken or transaction to be entered into by the Federal Trade Commission, the Antitrust Division of the Department of Justice Parent or any other applicable Governmental Entity challenging any of its Affiliates that would reasonably be expected to have, individually or in the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise preventaggregate, materially impede or materially delay a material adverse effect on the consummation of the transactions contemplated hereby, each ability of Parent, Merger Sub and I or Merger Sub II to consummate the Company will use transactions contemplated hereby prior to the Outside Date. Without limiting the generality of the foregoing, none of Parent or its reasonable best efforts Affiliates shall acquire (whether by merger, consolidation, stock or asset purchase or otherwise), or agree to resolve so acquire, any subject objections assets of or suits so as to permit any equity in any other Person or any business or division thereof, if that acquisition or agreement would reasonably be expected to: (i) materially increase the risk of not obtaining approval under any Regulatory Law or the expiration or termination of any waiting period in connection with Antitrust Laws; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this Agreement, including in the Mergers or materially increase the risk of not being able to remove any such order to resolve such objections on appeal or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede otherwise; or (iii) prevent or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than beyond the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take Date receipt of any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of ParentAntitrust Law approval.
Appears in 1 contract
Further Action; Efforts. (a) Prior to the Effective Time, the Company shall use its reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts to which the Company or any of its Subsidiaries is a party as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Transactions. Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will of the Company, Parent and Merger Sub shall, as promptly as practicable, use its reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityTransactions. In furtherance and not in limitation of the foregoing, each of the parties hereto agree to Company, Parent and Merger Sub shall (i)(Ai) make an all appropriate filing of a Notification filings and Report Form pursuant submissions (and filings and submissions considered by Parent to be advisable) under the HSR Act and with any other Governmental Authority pursuant to any other applicable Antitrust Laws or otherwise, as promptly as practicable (and practicable, but in any no event within ten (10) later than 10 Business Days after the date of this Agreement)hereof with respect to filing under the HSR Act, and (B) supply shall make as promptly as practicable any additional information and documentary material that may be requested pursuant other appropriate submissions under other applicable Antitrust Laws, (ii) use commercially reasonable efforts to obtain as promptly as practicable the termination of any waiting period under the HSR Act and use reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the any applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any foreign Antitrust Laws, (iii) cooperate and consult with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Authorities 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 making all such filings and timely seeking all such consents, approvals, permits, notices or authorizations.
(b) In connection with the efforts referenced in Section 6.09(a), each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, will (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party reasonably informed of any communication 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 the Transactions and (iii) permit the other party to review any communication given by it to, and consult with each other in advance of any 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 EntityAuthority or other Person, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review attend and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions participate in such meetings and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closingconferences.
(bc) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a6.09(a) and Section 6.09(b), if any objections are asserted with respect to the transactions contemplated hereby Transactions under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade CommissionFTC, the Antitrust Division of the Department of Justice DOJ or any other applicable Governmental Entity Authority or any private party challenging any of the transactions contemplated hereby Transactions as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyTransactions, each of Parent, Merger Sub and the Company will shall use its reasonable best efforts to resolve any subject such objections or suits so as to permit consummation of the transactions contemplated by this AgreementTransactions, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions.
(d) 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 Merger or any other Transaction, each of Parent, Merger Sub and the Company shall cooperate in all respects with each other transactions contemplated herebyand use its respective commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, including sellinglifted, holding 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. Parent shall be entitled to direct the antitrust defense of the Merger or any other Transactions, or negotiations with, any Governmental Authority or other Person relating to the Merger or regulatory filings under applicable Antitrust Law, subject to the provisions of Section 6.09(a), (b), (c) and (e).
(e) Notwithstanding the foregoing or any other provision of this Agreement, (i) nothing in this Section 6.09 shall limit a party’s right to terminate this Agreement pursuant to Section 8.01 and (ii) nothing in this Agreement shall obligate Parent, Merger Sub or any of their respective Affiliates to agree to (A) sell, hold separate or otherwise disposing dispose of all or conducting a portion of its respective business, assets or properties, or conduct its business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to any Contract any material accommodation, (C) commence or defend any Action or claim in respect of any threatened Action, (D) limit in any manner which would resolve whatsoever the ability of such objections entities to conduct, own, operate or suits control any of their respective businesses, assets or permitting properties or of the salebusinesses, holding separate properties or other disposition ofassets of the Company and its Subsidiaries or (E) waive any of the conditions set forth in ARTICLE VII of this Agreement. Without the prior written consent of Parent, none of the Company or any of its Subsidiaries shall, in response to any objections asserted with respect to the Transactions under any Antitrust Law or any suit instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Authority or any private party challenging any of the Transactions as violative of any Antitrust Law, (A) sell, hold separate or otherwise dispose of all or a portion of their respective businesses, assets or the assets of its Subsidiaries properties, or the conducting of its conduct their business in a manner which would resolve such action or proceedingspecified manner, in each case no later (B) pay any amounts (other than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent payment of filing fees and Merger Sub shall not be obligated to take any actionsexpenses and fees of counsel), or agree grant any counterparty to refrain from taking any actionsContract any material accommodation, that(C) commence or defend any Action or claim in respect of any threatened Action or (D) limit in any manner whatsoever the ability of such entities to conduct, collectivelyown, would have a material adverse effect on the combined business operate or control any of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries)businesses, taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, assets or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentproperties.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, and no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, impede or materially delay the Distribution and consummation of the other transactions contemplated by Transactions. Notwithstanding the foregoing, nothing in this Agreement and the Spin-Off Transaction Agreementsshall require Parent, including using its reasonable best efforts to obtain all necessary actions Merger Sub or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsMerger LLC to, and no Acquired Company shall, without the prior written consent of Parent, agree to make all necessary registrations and filings and take all steps as may be necessary any modification to obtain such required waiveror accommodation under any Contract or pay any fee, penalty or other consideration to any third party for any consent or approval from any Governmental Entityrequired for the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to make (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within fifteen (and in any event within ten (1015) Business Days after from the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and including by requesting early termination of the waiting period provided for in the HSR Act, (ii) use reasonable best efforts to takeif required, or cause to be taken, all actions appropriate filings under any Regulatory Law as soon as reasonably practicable and to do, or cause to be done, all things (iii) any other necessary, proper or advisable under registrations, filings and notices within twenty (20) Business Days after the date hereof. Subject to applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one anotherLaw, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, except as required by any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, neither Parent nor the Company shall agree to give each other an opportunity to participate in each extend any waiting period under the HSR Act without the prior written consent of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Dateparty; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, if Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including disagree as to whether to extend the Retained Subsidiaries)period, taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent’s determination shall control.
Appears in 1 contract
Samples: Merger Agreement (HFF, Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as reasonably possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to, or to cause their ultimate parent entity (i)(Aas such term is defined in the HSR Act) to, (i) make an appropriate filing Filing of a Notification and Report Form pursuant to the HSR Act and all other Filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable (and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of this the Agreement), ) and (Bii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use or any other Antitrust Law. Parent shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods Company, be responsible for making any Filing or notification required under foreign Antitrust Laws within ten (10) Business Days after the HSR Act as soon as practicabledate of this Agreement, unless otherwise agreed to by the Company and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesParent in writing. The parties will hereto also shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and may provide to the other parties in advanceon a counsel-only basis as necessary, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, (D) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel basis basis, if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance Notwithstanding anything in this Agreement to the contrary, Parent shall, and not shall cause its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in limitation connection with Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possible, provided, however, that nothing in this Section 5.7 or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates to (i) offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the covenants capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the parties contained in Section 5.7(aSurviving Corporation and its Subsidiaries), and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or (ii) contest, defend, or appeal any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof, if any objections are asserted with respect to such action described in subparts (i) or (ii) of this Section 5.7(b) would, individually or in the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commissionaggregate, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have (A) a material adverse effect on the combined business business, assets or financial condition of the Parent Spinco and the Company and their respective its Subsidiaries (including the Retained Subsidiaries)or Affiliates, taken as a whole, after giving effect to the Contemplated Transactions or (B) a material adverse effect on the business, assets or financial condition of the Company; it being understood that a request for information or documentary material pursuant to the HSR Act shall not in itself constitute a material adverse effect under this Section 5.7(b). Parent Spinand the Company shall each pay one-half of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust Laws.
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.7, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, and the Company shall cooperate in all respects with each other and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger.
(d) Prior to the Effective Time, each party hereto shall use reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken, all actions necessary, 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 Contemplated Transactions, including (i) obtaining any Approvals of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions, (ii) defending any Action challenging this AgreementAgreement or the consummation of the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions; provided, further, that, notwithstanding anything in no event will the Company or its Subsidiaries be required to pay, prior to the contrary in this Section 5.7Effective Time, the Company will not take any actionfee, penalty, or agree other consideration or make any other accommodation to refrain from taking any actionthird party to obtain any Approvals required with respect to any such Contract (for the avoidance of doubt, pursuant excluding filing fees required to this Section 5.7(b) without be paid to a Governmental Body). Each party hereto shall promptly deliver to the express written permission other party a copy of Parenteach such filing made, each such notice given and each such consent obtained by such party prior to the Effective Time.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, and no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, impede or materially delay the Distribution consummation of the Transactions; provided, however, that the parties hereto acknowledge and agree that all obligations of Parent, Merger Sub, Merger LLC and the other transactions contemplated Company relating to the Debt Financing shall be governed exclusively by Section 5.19, and not by this Section 5.7. Notwithstanding the foregoing, nothing in this Agreement and the Spin-Off Transaction Agreementsshall require Parent, including using its reasonable best efforts to obtain all necessary actions Merger Sub or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsMerger LLC to, and no Acquired Company shall, without the prior written consent of Parent, agree to make all necessary registrations and filings and take all steps as may be necessary any modification to obtain such required waiveror accommodation under any Contract or pay any fee, penalty or other consideration to any third party for any consent or approval from any Governmental Entityrequired for the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to (i)(A) make, if required, appropriate filings under any Regulatory Law, and each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within a reasonable time period not to exceed thirty (and in any event within ten (1030) Business Days after days from the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted including by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party requesting early termination of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to waiting period provided for in the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 ClosingHSR Act.
(b) In furtherance and not in limitation The Company agrees to submit to the staff of the covenants SEC a draft form of the parties contained necessary documents required in connection with the approval contemplated by Section 6.1(g)(i), as soon as reasonably practicable after the date hereof (but in any event within twenty (20) days after the date of this Agreement), and thereafter to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested, and to take all other commercially reasonable actions necessary, in connection therewith. Parent will reasonably cooperate promptly with the Company in connection with the preparation of the necessary documents required in connection with the approval contemplated by Section 6.1(g)(i) and in responding to any requests from the SEC in connection therewith.
(c) Each of Parent, Merger Sub and Merger LLC, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 5.7(a)) to obtain all requisite approvals and authorizations for the Transactions under the HSR Act or any other Regulatory Law, if use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any objections are asserted filing or submission and in connection with respect to any investigation or other inquiry, including any Action initiated by a private party, (ii) keep the transactions contemplated hereby under other party reasonably informed of any Antitrust Law communication received by such party from, or if any suit is instituted (or threatened to be instituted) given by such party to, the Federal Trade CommissionCommission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or non-U.S. Governmental Entity and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions and (iii) permit the other party a reasonable opportunity to review any substantive written communication given by it to (including the documentation referenced in Section 5.7(a)), and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any Action by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity challenging or other Person, give the other party the reasonable opportunity to attend and participate in such meetings and conferences. Notwithstanding the foregoing, the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other side under this Section 5.7(c) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel regarding Regulatory Law of the recipient and will not be disclosed by outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates unless express permission is obtained in advance from the transactions contemplated hereby source of the materials (the Company or Parent, as violative the case may be) or its legal counsel. Each of the Company and Parent shall cause its respective counsel regarding Regulatory Law to comply with this Section 5.7(c).
(d) No party hereto and no Parent Company or Acquired Company shall, without the prior written consent of the other parties hereto (which consent shall not be unreasonably withheld, conditioned or delayed) consent to or accept or enter into any operational restriction, consent decree or hold separate order or make any divestiture or other undertaking to obtain requisite approvals and authorizations for the Transactions from any Governmental Entity; provided that, without the prior written consent of the other parties hereto, either party hereto and any Parent Company or Acquired Company may divest or dispose of any Antitrust Law assets or which would otherwise preventbusiness that generated $1,000,000 or less in net revenue during 2015. Notwithstanding anything in this Agreement to the contrary, materially impede no Parent Company or materially delay Acquired Company shall be obligated to, and no party hereto shall, without the consummation prior written consent of the transactions contemplated herebyother parties hereto (which consent shall be in the sole discretion of such other parties) consent to accept or enter into any operational restriction, each of Parent, Merger Sub consent decree or hold separate order or make any divestiture or other undertaking to obtain requisite approvals and authorizations for the Company will use its reasonable best efforts to resolve Transactions from any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits whichGovernmental Entity, in any case if not resolvedeach case, could that, individually or in the aggregate, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would (i) have a material adverse effect on the combined business business, assets, liabilities, financial condition or results of operations of the Acquired Companies, taken as a whole, or (ii) have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries)Companies, taken as a whole, after giving effect to the Merger (provided that for the purpose of determining whether a potential adverse effect on the Parent SpinCompanies, taken as a whole, after giving effect to the Merger, would constitute a material adverse effect, the Merger and the other transactions contemplated by this Agreement; providedParent Companies, furthertaken as a whole, that, notwithstanding anything after giving effect to the contrary Merger, shall be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size and scale of the Acquired Companies, taken as a whole) (each of the effects described in clauses (i) and (ii) of this Section 5.7, the Company will not take any action, or agree sentence being referred to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentherein as a “Burdensome Effect”).
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the MergerOffer, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to, or to cause their ultimate parent entity (i)(Aas such term is defined in the HSR Act) to, (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as practicable (and in any event within ten prior to the expiration of any applicable legal deadline (10provided that, unless otherwise agreed by the Company and Parent in writing, the filing of a Notification and Report Form pursuant to the HSR Act must be made on or before December 18, 2020) Business Days after the date of this Agreement), and (Bii) to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all or any other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesAntitrust Law. The parties will also shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws, (D) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis basis, if appropriate.
(b) Parent shall, and shall cause each of its Subsidiaries and Affiliates to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as practicable and, in any event, by or before the Outside Date, including (i) promptly complying with any requests for additional information (including any second request) by any Governmental Body and (ii) contesting and defending any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Offer and the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof. Nothing Furthermore, Parent shall not take, and shall cause each of its Subsidiaries to not take, any action or omit to take any action that would reasonably be expected to delay clearance by any Governmental Body or to make clearance by any Governmental Body before the Outside Date less probable. Parent shall bear the expenses and costs incurred by the parties in connection with any filings or other such actions which may be required by such party to obtain clearance under any Antitrust Law for the consummation of the Offer and the Merger, in each case, after the initial filing in each jurisdiction. Notwithstanding anything to the contrary in this Section 5.7(a6.6(b) or otherwise in this Agreement, neither Parent nor any of its Affiliates shall have any obligation offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any or all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent or any of its Subsidiaries (including the Surviving Corporation), or any other restrictions on the activities of Parent or any of its Subsidiaries (including the Surviving Corporation); provided, however, that Parent shall take such actions with respect to the Company (including, after the Effective Time, the Surviving Corporation) if such action (A) is necessary to obtain required clearances or waiting period expirations or terminations as may be required under the HSR Act or any Antitrust Laws by or before the Outside Date and (B) would not, individually or in the aggregate, reasonably be expected to be materially detrimental to the benefits to be derived by Parent and its Affiliates as a result of the Contemplated Transactions. In addition, the Company shall not offer or commit to take any of such actions without Parent’s prior written consent. For the avoidance of doubt, Parent shall not require the Company or its Subsidiaries to take or agree to to, and the Company shall not be required to, take any action with respect to its business any consent decree, hold separate order or operations unless other applicable Law that binds the effectiveness of such agreement or action is conditioned upon Company prior to the ClosingEffective Time.
(c) Without limiting the obligations in clauses (a) and (b) In furtherance and not of this Section 6.6, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Federal Trade Commission, Offer or the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyMerger, each of Parent, Merger Sub Purchaser, and the Company will shall cooperate in all respects with each other and shall use its reasonable best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, 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 AgreementOffer or the Merger.
(d) Prior to the Acceptance Time, including in order each party shall use commercially reasonable efforts to resolve such objections obtain any consents, approvals, or suits which, in waivers of third parties with respect to any case if not resolved, could reasonably Contracts to which it is a party as may be expected to prevent, materially impede or materially delay necessary for the consummation of the Merger Contemplated Transactions or required by the other transactions contemplated herebyterms of any Contract as a result of the execution, including sellingperformance, holding separate or otherwise disposing consummation of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DateContemplated Transactions; provided, however, that, notwithstanding anything in no event will the Company be required to pay, prior to the contrary in this Section 5.7Effective Time, Parent and Merger Sub shall not be obligated to take any actionsfee, penalty, or agree other consideration or make any other accommodation to refrain from taking any actionsthird party to obtain any consent, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any actionapproval, or agree waiver required with respect to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentsuch Contract.
Appears in 1 contract
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law) to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement at the earliest practicable date, including: (i) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Mergers and the Spintaking of such actions as are necessary to obtain any requisite consent or expiration of any applicable waiting period under the HSR Act; (ii) causing the preparation and filing of all forms, registrations and notices required to be filed with any other Governmental Entity (including state governments and the New Hampshire Banking Department) or self-Off Transaction Agreementsregulatory organization, including NYSE and FINRA, to consummate the Mergers, (iii) using its reasonable best efforts to obtain defend all necessary actions lawsuits and other proceedings by or nonbefore any Governmental Entity or self-actions, waivers, consents regulatory organization challenging this Agreement or the consummation of the Mergers; and approvals from (iv) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law raised by any Governmental Entities, including Entity and to prevent the entry of any required action or non-action under Antitrust Lawscourt order, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiverhave vacated, consent lifted, reversed or approval from overturned any injunction, decree, ruling, order or other action of any Governmental Entity. Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of the foregoingprovisions of Section 5.6(a), (i) each of the parties hereto agree parties, as applicable, agrees to (i)(A) make prepare and file as promptly as practicable, and in any event by no later than ten Business Days from the date of this Agreement 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 of this Agreement)all other regulatory filings, consents and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant notices related to the HSR Act and use 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 as soon as practicableAct, and (ii) use reasonable best efforts as promptly as practicable following the date hereof, each of the parties shall prepare and file all filings, consents and notices required by any other Governmental Entity or self-regulatory organization. Notwithstanding Section 7.3(a), Parent shall pay all filing fees and other charges for the filings by the Company and Parent required by any Governmental Entity or self-regulatory organization (including under the HSR Act).
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to takethis Agreement or the transactions contemplated hereby, including but not limited to a second request for information under the HSR Act, then such party shall in good faith make, or cause to be takenmade, all actions as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of status with respect to dothe matters set forth in this Section 5.6 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, or cause including:
(i) cooperating with each other in connection with filings required to be done, made by any party under any Antitrust Law and liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from communications with such Governmental Entities. The parties In particular, to the extent permitted by Law or Governmental Entity, no party will also consult make any notification in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and cooperate giving such other party a reasonable opportunity to discuss its content before it is filed with one anotherthe relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in good faith the views of one another, in connection with, and provide this respect;
(ii) furnishing to the other party all information within its possession that is required for any application or other regulatory filing to be made by the other party pursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) to the extent permitted by Law or Governmental Entity, promptly notifying each other of any substantive communications from or with any Governmental Entity with respect to the matters set forth in this Section 5.6 and ensuring to the extent permitted by Law or Governmental Entity that each of the parties is entitled to attend any meetings with or other appearances before any Governmental Entity with respect thereto;
(iv) consulting and cooperating with one another in advance, any connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any the Antitrust Laws. Without limiting the foregoing, ;
(v) without prejudice to any rights of the parties hereto agree (A) to give each hereunder, consulting and cooperating in all respects with the other reasonable advance notice of in defending all meetings with lawsuits and other proceedings by or before any Governmental Entity relating to any Antitrust Laws, (B) to challenging this Agreement or the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or ; and
(vi) promptly notifying the other party of any substantive written communications with any Governmental Entity relating to the transactions contemplated hereby, including related to any non-routine regulatory examination, audit or investigation, or otherwise related to the business and operations of the Company and its Subsidiaries.
(e) In addition, Parent shall take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws to consummate the transactions contemplated by this Agreement, including using its reasonable best efforts to obtain the expiration of all waiting periods and obtain all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the obligations of Parent under this Section 5.6 shall include Parent committing to: (i) selling, divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent and its controlled Affiliates; (ii) agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company and its Subsidiaries contemporaneously with or subsequent to the Company Merger Effective Time; (iii) permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company or any of its Subsidiaries; and (iv) licensing, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of entering into similar arrangements with respect to its assets or the assets of its Subsidiaries the Company or the conducting conduct of its business in a manner which would resolve such action or proceeding, terminating existing relationships and contractual rights and obligations; in each case no later than as a condition, and subject, to obtaining any and all expirations of waiting periods under the Outside DateHSR Act or consents from any Governmental Entity under the Antitrust Laws.
(f) Each of Parent and the Company will, and will cause their respective Affiliates to, (A) provide such assistance, information and cooperation to each other as is reasonably required to obtain the approval or non-objection of, or make notice filings with, such Governmental Entities, including FINRA with respect to the MNIS CMA (which assistance and cooperation may include participation in any membership interviews as may be required by FINRA as well as adhering to any time limitations or time requirements imposed by FINRA for any applications, notices and filings), and (B) provide each other with a reasonable opportunity to review any applications, notices or other filings proposed to be made in connection with obtaining such approvals or non-objections, or making such notice filings (and will give due consideration to any comments and suggestions made with respect thereto by the other party). In connection therewith, each of Parent and the Company will notify the other promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any application, notice or other filing with such Governmental Entity and will supply the other party with copies of all material correspondence between such party or any of its affiliates, officers, directors, members, employees, representatives or agents or accounting, financial or legal advisors, on the one hand, and any Governmental Entity, on the other hand, in connection with obtaining such approvals or non-objections or making such notice filings; provided, however, that, notwithstanding anything that such disclosure is permitted under applicable Law. If the MNIS CMA is not formally approved in writing by FINRA prior to the contrary 31st day following the date that FINRA has deemed the CMA to have been filed with FINRA (unless FINRA has notified MNIS that the CMA is subject to “fast track” review), then MNIS or its representatives shall notify (in writing and at least five (5) Business Days prior to the anticipated Closing Date) the FINRA Membership Application Program that the parties intend to consummate the Closing pursuant to FINRA Rule 1017(c)(1).
(g) Notwithstanding the foregoing, commercially and/or competitively sensitive information and materials of a party will be provided to the other party 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.
(h) For purposes of this Section 5.7Agreement, Parent “Antitrust Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, foreign Antitrust Laws and Merger Sub 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 of competition through merger or acquisition.
(i) The Company shall not be obligated to take any actionsobtain, or agree cause to refrain from taking any actionsbe obtained, that, collectively, would have a material adverse effect on the combined business LLC Unitholder Approval within three (3) Business Days of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by date of this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will shall, and shall cause its respective Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper proper, or advisable under applicable Law Laws to consummate the Merger, the Distribution Merger and the other transactions contemplated Contemplated Transactions as promptly as possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to (i)(Ai) make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other applicable filings pursuant to the Foreign Regulatory Approvals with respect to the Merger as promptly as practicable (and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of the Agreement, the applicable filings (or draft filings where applicable) pursuant to the Foreign Regulatory Approvals set forth in Section 5.8(a) of the Company Disclosure Letter must be made within twenty (20) Business Days after the date of this Agreement), Agreement and (B) supply all other applicable filings pursuant to the Foreign Regulatory Approvals must be made as promptly as practicable after the date of this Agreement; provided, further, that Parent shall not be in breach of this Section 5.8(a) with respect to Foreign Regulatory Approvals if any additional failure to make such filings (or draft filings where applicable) within such twenty (20) Business Day time period resulted from the Company’s breach of its obligations under this Section 5.8(a) with respect to Foreign Regulatory Approvals) and (ii) to make an appropriate response as promptly as practicable to any request for information and documentary material that may be requested made by a Governmental Body pursuant to the HSR Act and use or any other Antitrust Laws or Foreign Investment Laws. Parent shall, with the reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination cooperation of the applicable waiting periods under Company, be responsible for making any filing or notification required for the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entitiespurposes of the Foreign Regulatory Approvals. The parties will also shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions opinions, and proposals made or submitted by or on behalf of any such party hereto in connection with proceedings under or relating to any Antitrust Laws and any Foreign Investment Laws. .
(b) Without limiting the foregoing, the parties hereto agree agree, in each case in connection with the Merger or the Contemplated Transactions (Ai) to give each other reasonable advance notice of all meetings with any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws, (Bii) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (Ciii) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws, (Div) if any Governmental Entity Body initiates a substantive oral communication regarding any Antitrust Laws or Foreign Investment Laws, to promptly notify the other party of the substance of such communication, (Ev) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity Body regarding any Antitrust Laws or Foreign Investment Laws and (Fvi) to provide each other with copies of all substantive written communications to or from any Governmental Entity Body relating to any Antitrust Laws or Foreign Investment Laws. Any such disclosures or provision of copies by one party to the other may be redacted or made on an outside counsel basis basis, if and to the extent appropriate. Nothing .
(c) Notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause each of its Subsidiaries to, (i) take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws, and to enable all waiting periods under the HSR Act and other applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, and (ii) use its reasonable best efforts to take any and all actions necessary to obtain the Foreign Investment Approvals, in each case, to cause the Merger to occur as promptly as possible and, in any event, by or before the Outside Date, including (A) promptly complying with any requests for additional information (including any second request or equivalent) by any Governmental Body, (B) if necessary to obtain clearance by any Governmental Body before the Outside Date, offering, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or making or effecting any commitment, condition or undertaking required by any Governmental Body with respect to the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries); provided, that Parent and its Subsidiaries will not be required to take any of the actions contemplated by this clause (B) as condition by any Governmental Body to obtaining any Foreign Investment Approval in the event that such action contemplated by this clause (B) would reasonably be expected to result in a material adverse effect on the business, condition (financial or otherwise), assets, operations, or results of operations of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), taken as a whole, following the Merger, and (C) contesting, defending, and appealing any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking such actions to prevent the entry, enactment, or promulgation thereof. Subject to the other provisions of this Agreement, including this Section 5.7(a) 5.8, each party shall require the Company or not, and shall cause each of its Subsidiaries to take not, take, any action or agree omit to take any action that would reasonably be expected to materially delay or prevent clearance by any Governmental Body or to make clearance by any Governmental Body before the Outside Date less probable in any material respect. Parent shall bear the filing fees incurred in connection with respect to its business or operations unless any filings under the effectiveness HSR Act and in connection with the Foreign Regulatory Approvals which may be required for the consummation of such agreement or action is conditioned upon the ClosingMerger.
(bd) In furtherance Without limiting the obligations in clauses (a) and not (c) of this Section 5.8, in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyMerger, each of Parent, Merger Sub Sub, and the Company will shall cooperate in all respects with each other and shall use its reasonable best efforts to resolve contest and resist any subject objections such action or suits so as proceeding and to permit have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, 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 AgreementMerger.
(e) Prior to the Effective Time, including in order each party shall use commercially reasonable efforts to resolve such objections obtain any consents, approvals, or suits which, in waivers of third parties with respect to any case if not resolved, could reasonably Contracts to which it is a party as may be expected to prevent, materially impede or materially delay necessary for the consummation of the Merger Contemplated Transactions or required by the other transactions contemplated herebyterms of any Contract as a result of the execution, including sellingperformance or consummation of the Contemplated Transactions; provided that in no event will the Company or its Subsidiaries be required to pay, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting prior to the saleEffective Time, holding separate any fee, penalty, or other disposition ofconsideration or make any other accommodation to any third party to obtain any consent, approval or waiver required with respect to any of its assets such Contract. Notwithstanding the foregoing, except as required by applicable Law or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this an applicable Labor Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will shall not take consult with any actionUnion regarding the Contemplated Transactions without obtaining Parent’s prior written consent (which consent may not be unreasonably withheld, conditioned, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentdelayed).
Appears in 1 contract
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law) to consummate the Merger, the Distribution Merger and the other transactions contemplated by this Agreement at the earliest practicable date, including: (i) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Spin-Off Transaction Agreements, including Merger and using its reasonable best efforts to take such actions as are necessary to obtain any requisite consent or expiration of any applicable waiting period under the HSR Act or any other Antitrust Law; (ii) using reasonable best efforts to defend all necessary actions lawsuits and other proceedings by or non-actions, waivers, consents before any Governmental Entity challenging this Agreement or the consummation of the Merger; and approvals from (iii) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law raised by any Governmental Entities, including Entity and to prevent the entry of any required action or non-action under Antitrust Lawscourt order, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiverhave vacated, consent lifted, reversed or approval from overturned any injunction, decree, ruling, order or other action of any Governmental Entity. Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of the foregoingprovisions of Section 5.7(a), each of the parties hereto agree parties, as applicable, agrees to (i)(A) make prepare and file as promptly as practicable, and in any event by no later than 10 Business Days from the date of this Agreement an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (Act. Parent shall pay all filing fees for the filings required to be made by the Company and in any event within ten (10) Business Days after the date of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods Parent under the HSR Act as soon as practicableAct.
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or the transactions contemplated hereby, and (ii) use reasonable best efforts including but not limited to takea Second Request for Information under the HSR Act, then such party shall in good faith make, or cause to be takenmade, all actions as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised with respect to dothe matters set forth in this Section 5.7 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, or cause including:
(i) cooperating with each other in connection with filings required to be done, made by any party under any Antitrust Law and liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from material communications with such Governmental Entities. The parties In particular, to the extent permitted by Law or Governmental Entity, no party will also consult make any notification in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and cooperate giving such other party a reasonable opportunity to discuss its content before it is filed with one anotherthe relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in good faith the views of one another, in connection with, and provide this respect;
(ii) furnishing to the other party, to the extent permitted by Law, all information within its possession that is required for any application or other filing to be made by the other party pursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the matters set forth in this Section 5.7 and ensuring to the extent permitted by Law or Governmental Entity that each of the parties is entitled to attend any meetings with or other appearances before any Governmental Entity with respect thereto;
(iv) consulting and cooperating with one another in advance, any connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any the Antitrust Laws. Without limiting the foregoing, ; and
(v) without prejudice to any rights of the parties hereto agree (A) to give each hereunder, consulting and cooperating in all respects with the other reasonable advance notice of in defending all meetings with lawsuits and other proceedings by or before any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to challenging this Agreement or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated herebyby this Agreement.
(e) In addition, Parent shall use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws and other applicable Laws to consummate the transactions contemplated by this Agreement, including using its reasonable best efforts to obtain the expiration of all waiting periods and obtain all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, Parent (i) shall have the right to determine and direct the strategy and process by which the parties will seek required approvals under the HSR Act and any Antitrust Laws, (ii) unless otherwise requested by a Governmental Entity for a specific meeting or communication shall take the lead in all meetings and communications with any Governmental Entity and (iii) shall determine the appropriate timing of any meetings or communications with any Governmental Entity (including the timing of the submission of any filing with, or response to any request by, a Governmental Entity or any action taken pursuant to this Section 5.7).
(f) Notwithstanding anything to the contrary set forth in this Agreement, the obligations of Parent under this Section 5.7 shall include Parent committing itself and its Affiliates to and, to the extent requested by Parent, the obligations of the Company under this Section 5.7 shall include the Company and its Subsidiaries: (i) selling, divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent and its Subsidiaries and Affiliates, the Company or the Company’s Subsidiaries; (ii) agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time; (iii) after request of Parent or with Parent’s prior written consent, permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company or any of its Subsidiaries prior to the Effective Time; (iv) licensing, holding separate or otherwise disposing of or conducting entering into similar arrangements with respect to its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its respective assets or the assets of its Subsidiaries the Company or undertaking other structural or conduct relief or behavioral remedies, including with respect to the conducting conduct of its business in arrangements or terminating existing relationships and contractual rights and obligations and (v) agree to, if necessary to consummate the transactions contemplated by this Agreement, obtain prior approval or other approval from a manner which would resolve such action Governmental Entity, or proceedingsubmit a notification or otherwise notify any Governmental Entity, in each case no later prior to consummating any future transaction (other than the Outside Date; provided, however, that, notwithstanding transactions contemplated by this Agreement) as a condition to obtaining any and all expirations of waiting periods under the HSR Act or other Antitrust Laws or consents from any Governmental Entity necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary in this Section 5.7Agreement, nothing in this Agreement shall require Parent and or Merger Sub shall Sub, or any of their respective Subsidiaries or Affiliates to commit to or effect any action, effort, or agreement (1) that is not be obligated to take any conditioned upon the consummation of the Merger or (2) that, when taken together with all other actions, efforts or agree agreements set forth under this Section 5.7 would reasonably be expected to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business business, operations, financial condition or results of the operations of Parent Spinco and the Company and their respective its Subsidiaries (including the Retained Company and its Subsidiaries), taken as a whole (assuming for purposes of such analysis that Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole, after giving effect were the same size, with the same financial profile, as the Company and its Subsidiaries, taken as a whole). The Company and its Subsidiaries shall not, prior to the Effective Time, propose, negotiate, commit to, effect, or agree to any actions, efforts or agreements pursuant to this Section 5.7, except at the request of Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding or with Parent’s prior written consent. Notwithstanding anything to the contrary in this Section 5.7Agreement, the nothing in this Agreement shall require Company will not take or any of its Subsidiaries to commit to or effect any action, effort, or agree agreement that is not conditioned upon the consummation of the Merger.
(g) Each party acknowledges and agrees that the other party may, as it deems advisable, designate any competitively sensitive materials provided to refrain from taking any action, the other party pursuant to this Section 5.7(b) Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient without the express prior written permission consent of Parentthe disclosing party; provided, further, that any information or materials provided to or received by any party may be redacted as necessary (a) to comply with contractual arrangements; (b) to address reasonable attorney-client or other privilege or confidentiality concerns; and (c) to remove information related to related to a party’s (or its Affiliates’) valuation of the transactions contemplated by this Agreement.
(h) For the avoidance of doubt, in the event either party receives a letter from any Governmental Entity stating that although the waiting period under the HSR Act applicable to the transactions contemplated by this Agreement will soon expire, the Governmental Entity has not yet completed any purported investigation of the proposed transaction (a “Pre-Consummation Warning Letter”), the parties agree that the receipt by either or both of them of a Pre-Consummation Warning Letter or other verbal or written communications from the Governmental Entity to the same effect shall not be a basis for asserting that any condition to Closing under Article VI hereof has not been satisfied.
(i) For purposes of this Agreement, “Antitrust 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 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.
Appears in 1 contract
Samples: Merger Agreement (Infrastructure & Energy Alternatives, Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party Party will use reasonable its best efforts to (and, in the case of BidCo, use its best efforts to cause each of its subsidiaries and Affiliates (collectively, the “BidCo Group”) to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws and regulations to consummate the Merger, the Distribution Acquisition and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityAgreement. In furtherance and not in limitation of the foregoing, the parties each Party hereto agree agrees to make (i)(Aor cause to be made) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and the foreign antitrust and investment filings listed in Section 6.5(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby as promptly as practicable (and in any event within ten (10) Business Days after of the date hereof with respect to any filing made pursuant to the HSR filing and as promptly as practicable for the other filings listed in Section 6.5(a) of this Agreement), the Company Disclosure Letter and (B) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any Antitrust Law and use reasonable best efforts to take any and all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and to obtain approval required under any other Antitrust Law as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance BidCo, on the one hand, and not the Company, on the other hand, shall, in limitation of connection with the covenants of the parties contained efforts referenced in Section 5.7(a), if any objections are asserted with respect 6.5(a) to obtain all requisite approvals and authorizations or expiration of waiting periods for the transactions contemplated hereby by this Agreement under the HSR Act or any other Antitrust Law Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or if submission and in connection with any suit is instituted investigation or other inquiry, including any proceeding initiated by a private party; (ii) subject to applicable Law, furnish to the other party as promptly as reasonably practicable all information required for any application or threatened other filing to be instituted) made by the other party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other Party of any substantive communication received by such party from, or given by such party to, the U.S. Federal Trade CommissionCommission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other applicable U.S. or foreign Governmental Entity challenging and of any substantive communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby as violative and, subject to applicable Law, furnish the other party promptly with copies of any Antitrust Law or which would otherwise preventall correspondence, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub filings and communications between them and the Company will use its reasonable best efforts FTC, the DOJ, or any other Governmental Entity with respect to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this AgreementAgreement (other than Item 4(c) and Item 4(d) documents and subject to adequate measures for protection of commercially and/or competitively sensitive information); (iv) respond as promptly as reasonably practicable to any inquiries received from, including and supply as promptly as reasonably practicable any additional information or documentation that may be requested by the DOJ, FTC or by any other Governmental Entity in order respect of such registrations, declarations and filings or such transactions; and (v) permit the other Party to resolve such objections review any substantive communication given by it to, and consult with each other in advance, and consider in good faith the other Party’s reasonable comments in connection with, any communication, meeting or suits whichconference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any case if not resolvedproceeding by a private party, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the with any other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside DatePerson; provided, however, that, notwithstanding anything to that BidCo shall be solely responsible for the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take final content of any actions, or agree to refrain from taking substantive communications with any actions, that, collectively, would have a material adverse effect on the combined business applicable Governmental Entity. For purposes of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parent.,
Appears in 1 contract
Samples: Acquisition Agreement (NCR Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the MergerTransactions, and no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, impede or materially delay the Distribution consummation of the Transactions; provided, however, that the parties hereto acknowledge and agree that all obligations of Parent, Merger Sub, Merger LLC and the other transactions contemplated Company relating to the Debt Financing shall be governed exclusively by Section 5.19, and not by this Section 5.7. Notwithstanding the foregoing, nothing in this Agreement and the Spin-Off Transaction Agreementsshall require Parent, including using its reasonable best efforts to obtain all necessary actions Merger Sub or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsMerger LLC to, and no Acquired Company shall, without the prior written consent of Parent, agree to make all necessary registrations and filings and take all steps as may be necessary any modification to obtain such required waiveror accommodation under any Contract or pay any fee, penalty or other consideration to any third party for any consent or approval from any Governmental Entityrequired for the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to (i)(A) make, if required, appropriate filings under any Regulatory Law, and each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable with respect to the Transactions within a reasonable time period not to exceed thirty (and in any event within ten (1030) Business Days after days from the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted including by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party requesting early termination of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to waiting period provided for in the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 ClosingHSR Act.
(b) In furtherance and not in limitation The Company agrees to submit to the staff of the covenants SEC a draft form of the parties contained necessary documents required in connection with the approval contemplated by Section 6.1(g)(i), as soon as reasonably practicable after the date hereof (but in any event within twenty (20) days after the date of this Agreement), and thereafter to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested, and to take all other commercially reasonable actions necessary, in connection therewith. Parent will reasonably cooperate promptly with the Company in connection with the preparation of the necessary documents required in connection with the approval contemplated by Section 6.1(g)(i) and in responding to any requests from the SEC in connection therewith.
(c) Each of Parent, Merger Sub and Merger LLC, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 5.7(a)) to obtain all requisite approvals and authorizations for the Transactions under the HSR Act or any other Regulatory Law, if use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any objections are asserted filing or submission and in connection with respect to any investigation or other inquiry, including any Action initiated by a private party, (ii) keep the transactions contemplated hereby under other party reasonably informed of any Antitrust Law communication received by such party from, or if any suit is instituted (or threatened to be instituted) given by such party to, the Federal Trade CommissionCommission (the “FTC ”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or non-U.S. Governmental Entity and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions and (iii) permit the other party a reasonable opportunity to review any substantive written communication given by it to (including the documentation referenced in Section 5.7(a)), and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any Action by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity challenging or other Person, give the other party the reasonable opportunity to attend and participate in such meetings and conferences. Notwithstanding the foregoing, the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other side under this Section 5.7(c) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel regarding Regulatory Law of the recipient and will not be disclosed by outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates unless express permission is obtained in advance from the transactions contemplated hereby source of the materials (the Company or Parent, as violative the case may be) or its legal counsel. Each of the Company and Parent shall cause its respective counsel regarding Regulatory Law to comply with this Section 5.7(c).
(d) No party hereto and no Parent Company or Acquired Company shall, without the prior written consent of the other parties hereto (which consent shall not be unreasonably withheld, conditioned or delayed) consent to or accept or enter into any operational restriction, consent decree or hold separate order or make any divestiture or other undertaking to obtain requisite approvals and authorizations for the Transactions from any Governmental Entity; provided that, without the prior written consent of the other parties hereto, either party hereto and any Parent Company or Acquired Company may divest or dispose of any Antitrust Law assets or which would otherwise preventbusiness that generated $1,000,000 or less in net revenue during 2015. Notwithstanding anything in this Agreement to the contrary, materially impede no Parent Company or materially delay Acquired Company shall be obligated to, and no party hereto shall, without the consummation prior written consent of the transactions contemplated herebyother parties hereto (which consent shall be in the sole discretion of such other parties) consent to accept or enter into any operational restriction, each of Parent, Merger Sub consent decree or hold separate order or make any divestiture or other undertaking to obtain requisite approvals and authorizations for the Company will use its reasonable best efforts to resolve Transactions from any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits whichGovernmental Entity, in any case if not resolvedeach case, could that, individually or in the aggregate, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would (i) have a material adverse effect on the combined business business, assets, liabilities, financial condition or results of operations of the Acquired Companies, taken as a whole, or (ii) have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries)Companies, taken as a whole, after giving effect to the Merger (provided that for the purpose of determining whether a potential adverse effect on the Parent SpinCompanies, taken as a whole, after giving effect to the Merger, would constitute a material adverse effect, the Merger and the other transactions contemplated by this Agreement; providedParent Companies, furthertaken as a whole, that, notwithstanding anything after giving effect to the contrary Merger, shall be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size and scale of the Acquired Companies, taken as a whole) (each of the effects described in clauses (i) and (ii) of this Section 5.7, the Company will not take any action, or agree sentence being referred to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentherein as a “Burdensome Effect”).
Appears in 1 contract
Further Action; Efforts. (a) Prior to the Effective Time, the Company shall use its commercially reasonable efforts to obtain any consents, approvals or waivers of third parties with respect to any Material Contracts to which the Company or any of its Subsidiaries is a party as may be necessary for the consummation of the Transactions or required by the terms of any Material Contract as a result of the execution, performance or consummation of the Transactions. Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will of the Company, Parent and Merger Sub shall, as promptly as practicable, use its commercially reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental EntityTransactions. In furtherance and not in limitation of the foregoing, each of the parties hereto agree to Company, Parent and Merger Sub shall (i)(Ai) make an all appropriate filing of a Notification filings and Report Form pursuant to submissions under the HSR Act and with any other Governmental Authority pursuant to any other applicable Antitrust Laws or otherwise, as promptly as practicable (and practicable, but in any no event within ten (10) later than 10 Business Days after the date of this Agreement)hereof with respect to filing under the HSR Act, and (B) supply shall make as promptly as practicable any additional information and documentary material that may be requested pursuant other appropriate submissions under other applicable Antitrust Laws, (ii) use commercially reasonable efforts to obtain as promptly as practicable the termination of any waiting period under the HSR Act and use reasonable best efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the any applicable waiting periods under the HSR Act as soon as practicableforeign Antitrust Laws, and (iii) cooperate and consult with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Authorities 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 making all such filings and timely seeking all such consents, approvals, permits, notices or authorizations.
(b) In connection with the efforts referenced in Section 6.09(a), each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, will (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) use reasonable best efforts to takekeep the other party reasonably informed of any communication received by such party from, or cause 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 the Transactions and (iii) permit the other party to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one anotherreview any communication given by it to, and consider consult with each other in good faith advance of any meeting or conference with, the views of one anotherFTC, the DOJ or any other Governmental Authority or, in connection withwith any proceeding by a private party, with any other Person, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by the FTC, the DOJ or such other applicable Governmental EntityAuthority or other Person, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review attend and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions participate in such meetings and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closingconferences.
(bc) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a6.09(a) and Section 6.09(b), if any objections are asserted with respect to the transactions contemplated hereby Transactions under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade CommissionFTC, the Antitrust Division of the Department of Justice DOJ or any other applicable Governmental Entity Authority or any private party challenging any of the transactions contemplated hereby Transactions as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyTransactions, each of Parent, Merger Sub and the Company will shall use its commercially reasonable best efforts to resolve any subject such objections or suits so as to permit consummation of the transactions contemplated by this AgreementTransactions, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Transactions.
(d) Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company shall prepare and their respective Subsidiaries (including the Retained Subsidiaries), taken as submit a whole, after giving effect joint voluntary notice with respect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything Transactions to the contrary Committee on Foreign Investment in this Section 5.7, the Company will not take any action, or agree to refrain from taking any actionUnited States (“CFIUS”), pursuant to this Section 5.7(b) without 721 of the express written permission Defense Production Act of Parent.1950, as amended by the Foreign Investment and National Security Act of 2007, as amended (“FINSA”), and the
Appears in 1 contract
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, prior to each of the Effective Time, each party will parties shall use its commercially reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable to consummate the transactions contemplated by this Agreement as soon as practicable and (ii) do all things necessary, proper or advisable under applicable Law laws and regulations to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoing, the parties hereto agree to (i)(A) 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 of this Agreement), and (B) supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use 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 as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.7, Parent and Merger Sub shall not be obligated to take any actions, or agree to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement at the earliest practicable date, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger; (B) defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger; and (C) using commercially reasonable best efforts to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement; provided, further, that, notwithstanding anything . Each of the parties hereto agrees to treat the receipt of the Merger Consideration in exchange for shares of Company stock pursuant to the contrary Merger as a taxable sale and purchase of Company stock for income tax purposes. With respect to any potential withholding tax under Section 1445 of the Internal Revenues Code of 1986, as amended (the “Code”), the parties hereto intend to rely on the exemption from such withholding tax pursuant to Code Section 897(c)(3) with respect to stockholders who beneficially own Common Stock representing less than five percent (5%) ownership in this Section 5.7the Company. Promptly after the date hereof, the Company will make a determination as to whether the Company is able to supply a certificate in accordance with Treas. Reg. §1.1445-2(c)(3) that the Company is not take a United States real property holding corporation so that no withholding will be required under Code Section 1445. Notwithstanding the foregoing, except as otherwise expressly provided by this Agreement, none of the parties hereto nor any actionof their respective Affiliates shall be obligated to make any payments or otherwise pay any consideration to any third party to obtain any applicable consent, waiver, settlement or agree approval in order to refrain from taking any action, pursuant to this Section 5.7(b) without consummate the express written permission of Parenttransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Xo Holdings Inc)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws to consummate the MergerOffer, the Distribution Merger and the other transactions contemplated by this Agreement. Notwithstanding anything in this Agreement and to the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent or approval from any Governmental Entity. In furtherance and not in limitation of the foregoingcontrary, the parties hereto agree to (i)(Ai) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other filings required by applicable foreign Antitrust Laws with respect to the Merger as promptly as practicable (and in any event prior to the expiration of any applicable legal deadline (provided, that the filing of a Notification and Report Form pursuant to the HSR Act will be made within ten (10) Business Days after the date of this the Agreement), and (Bii) to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts to take all or any other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental EntitiesAntitrust Law. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing Notwithstanding anything in this Section 5.7(a) shall require Agreement to the Company or contrary, Parent agrees, and will cause each of its Subsidiaries to take or agree and Affiliates, to take any action and all actions necessary to obtain any consents, clearances or approvals required under or in connection with respect the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign law, regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade or the significant impediment of effective competition (collectively “Antitrust Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Entity, in each case, to cause the Merger to occur prior to the Outside Date, including but not limited to (1) promptly complying with or modifying any requests for additional information (including any second request) by any Governmental Entity, (2) if necessary to obtain clearance by any Governmental Entity before the Outside Date, offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of the Parent and its business Subsidiaries and any other restrictions on the activities of Parent and its Subsidiaries and (3) contesting, defending and appealing any threatened or operations unless pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the effectiveness ability of any party hereto to consummate the Offer and the Merger and taking other actions to prevent the entry, enactment or promulgation thereof. Each party will bear its own expenses and costs incurred by such agreement party in connection with any HSR Act filings or action is conditioned upon other such competition filings and submissions which may be required by such party for the Closingconsummation of the Offer and the Merger pursuant to this Agreement.
(b) In furtherance and not in limitation of the covenants of the parties contained in Section 5.7(a), if event that any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law administrative or if any suit judicial action or proceeding is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other applicable a Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law Offer or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyMerger, each of Parent, Merger Sub Purchaser and the Company will cooperate in all respects with each other and will use its reasonable best efforts to resolve contest and resist any subject objections such action or suits so 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 or the Merger.
(c) Prior to the Acceptance Time, each party will use reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts to which it is a party as to permit may be necessary for the consummation of the transactions contemplated by this Agreement or required by the terms of any Contract as a result of the execution, performance or consummation of the transactions contemplated by this Agreement, including in order to resolve such objections or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, howeverthat in no event will the Company or its Subsidiaries be required to pay, that, notwithstanding anything prior to the contrary in this Section 5.7Effective Time, Parent and Merger Sub shall not be obligated any fee, penalty or other consideration to take any actionsthird party to obtain any consent, approval or agree waiver required with respect to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions contemplated by this Agreement; provided, further, that, notwithstanding anything to the contrary in this Section 5.7, the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of Parentsuch Contract.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Merger, the Distribution and the other transactions contemplated by this Agreement Agreement, and the Spin-Off Transaction Agreements, including using its no party hereto shall fail to use reasonable best efforts to take or cause to be taken any action that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated hereby. Each party shall use its commercially reasonable efforts to obtain all necessary actions consents with respect to the Contracts listed on Section 3.4 of the Company Disclosure Letter to the extent Parent requests that such consent be sought. Notwithstanding the foregoing, nothing in this Agreement shall require Parent or non-actions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under Antitrust LawsMerger Sub to, and the Company shall not without the prior written consent of Parent, agree to make all necessary registrations and filings and take all steps as may be necessary any modification to obtain such required waiver, or accommodation under any Contract or undertake any liability in connection with obtaining any consent or approval from under any Governmental EntityContract. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to make, if required, appropriate filings under any Antitrust Law (i)(Aas defined in Section 5.6(d) make hereof), including 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 of the date of this Agreement), hereof and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and to use 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 as soon as practicable, and (ii) including by requesting early termination of the waiting period provided for in the HSR Act. The Company shall use reasonable best good faith efforts to take, or cause execute its existing plan to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under become compliant with applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party of the substance of such communication, (E) to provide each other with Payment Card Industry standards within a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies period of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 Closingtime.
(b) In furtherance Each of Parent and not Merger Sub, on the one hand, and the Company, on the other hand, shall, in limitation of connection with the covenants of the parties contained efforts referenced in Section 5.7(a), if any objections are asserted with respect 5.6(a) to obtain all requisite approvals and authorizations for the transactions contemplated hereby by this Agreement under the HSR Act or any other Antitrust Law Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or if submission and in connection with any suit is instituted investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party reasonably informed of any communication received by such party from, or threatened to be instituted) given by such party to, the Federal Trade CommissionCommission (the “FTC”), the Antitrust Division of the Department of Justice DOJ (the “Antitrust Division”) or any other applicable U.S. or foreign Governmental Entity challenging of competent jurisdiction 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 as violative and (iii) permit the other party a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the Antitrust Division or any other Governmental Entity of competent jurisdiction or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the Antitrust Division or such other Governmental Entity of competent jurisdiction or other Person, give the other party the reasonable opportunity to attend and participate in such meetings and conferences. Notwithstanding the foregoing, the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other side under this Section 5.6(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel regarding Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated herebyrecipient and will not be disclosed by outside counsel to employees, each of Parentofficers, Merger Sub and the Company will use its reasonable best efforts to resolve any subject objections directors or suits so as to permit consummation consultants of the transactions contemplated by this Agreement, including in order to resolve such objections recipient or suits which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets Affiliates unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the assets case may be) or its legal counsel. Each of the Company and Parent shall cause its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding respective counsel regarding Antitrust Law to comply with this Section 5.6(b). Notwithstanding anything to the contrary in this Section 5.75.6(b), materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and privileged communications.
(c) Subject to the terms and conditions of this Agreement, Parent and Merger Sub shall not be obligated the Company shall, from the date of this Agreement until the Closing Date, use their respective reasonable best efforts to take any actionsavoid the entry of, or agree to refrain from taking have vacated or terminated, any actionsdecree, thatorder or judgment that would restrain, collectively, would have a material adverse effect on prevent or delay the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect Closing. Notwithstanding anything in this Agreement to the Parent Spincontrary, in order to obtain the Merger approvals and authorizations for the other transactions contemplated by this Agreement; providedAgreement under the HSR Act or any other Antitrust Law, furtherneither Parent nor any of its Subsidiaries or Affiliates shall be obligated to, thatand neither the Company nor any of its Subsidiaries shall without the prior written consent of Parent (which consent shall be in sole discretion of Parent), notwithstanding anything (i) proffer to, agree to or become subject to any order, judgment or decree to, sell, license or dispose of or hold separate or sell, license or dispose of or hold separate before or after the Closing, any of the assets, businesses, product lines or interest in any assets or businesses of Parent or any of its Affiliates or any material portion of the assets, business product lines or interest in any assets of the Company or any of its Subsidiaries or to consent to any sale, license, or disposition, or agreement to sell, license or dispose of, by the Company or any of its Subsidiaries, any material portion of the assets, businesses or product lines of the Company or any of its Subsidiaries, (ii) proffer to, agree to, or become subject to any order, judgment or decree to make or accept, any changes, modifications, limitations or restrictions in the operations of any assets or businesses of Parent or any material portion of the assets or businesses of the Company or any of its Subsidiaries (provided that Parent need not agree to any such items with respect to the contrary in this Section 5.7Company and its Subsidiaries if any of such changes, modifications, limitations or restrictions have any effect on the operations, business or assets of Parent or any of its other Subsidiaries that would be material (with materiality based on the size of the Company will not take and its Subsidiaries rather than the size of Parent and its Subsidiaries)), any actionContract to which Parent or any of its Subsidiaries is a party or otherwise bound or any Material Contract to which the Company or any of its Subsidiaries is a party or otherwise bound or any of the relationships of Parent or any of its Subsidiaries or any material relationship of the Company or any of its Subsidiaries with any other Persons (contractual or otherwise), or (iii) proffer to or agree to refrain from taking any actionconcession, accommodation or liability (except as would not be prohibited by clause (i) and (ii)) (the items in clauses (i) through (iii), to the extent related to or arising out of this Agreement or any of the transactions contemplated hereby in order to obtain the approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Antitrust Law, including the filings made in connection with this Section 5.6, each a “Burdensome Action”). The parties understand and agree that the Company and its Subsidiaries shall not take, offer or agree to any of the actions described in clauses (i) through (iii) above (for purposes of this sentence reading such clauses without the references to material) unless Parent has provided its prior written consent, which consent shall be granted with respect to any actions that are required to be taken pursuant to the terms of this Section 5.7(bAgreement within a time period that would permit the Merger to be consummated prior to the Outside Date if all of the other conditions to the parties obligations are satisfied or waived (other than conditions that may only be satisfied on the Closing Date).
(d) without For purposes of this Agreement, “Antitrust Law” means the express written permission Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, Foreign Antitrust Laws and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of Parentmonopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior each of the Company and the Acquiror agrees to use its reasonable best efforts to consummate the transactions contemplated hereby as soon as practicable after the date hereof. Subject to the Effective Timeterms and conditions of this Agreement, without limiting the foregoing, (i) each party will of the Company and the Acquiror agrees to use its reasonable best efforts to take, or cause to be taken, all actions and necessary to do, or cause to be done, comply promptly with all things necessary, proper or advisable legal requirements under applicable Law that may be imposed on itself with respect to consummate the Merger, transactions contemplated hereby (which actions shall include furnishing all information requested in connection with approvals of or filings with any Person or other Governmental Entity) and shall promptly cooperate with and furnish information to each other in connection with any such requests to any of them or any of their Affiliates in connection with the Distribution transactions contemplated hereby and (ii) each of the Company and the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using Acquiror shall use its reasonable best efforts to obtain all necessary actions (and shall cooperate with each other in obtaining) any consent, authorization, order or non-actionsapproval of, waiversor any exemption by, consents any Governmental Entity required or advisable to be obtained or made by the Company or the Acquiror or any of their Affiliates in connection with the transactions contemplated by this Agreement. Subject to the terms and approvals from Governmental Entitiesconditions set forth in this Agreement, including any required action or non-action under Antitrust Laws, each of the Company and the Acquiror agrees to make all necessary appropriate filings, notices and registrations and filings and take all steps with any Governmental Entity with respect to the transactions contemplated hereby as may be necessary promptly as practicable after the date of this Agreement in order to obtain such required waiverany consent, consent authorization, order or approval from of, or any exemption by, any Governmental EntityEntity required or advisable to be obtained or made by the Company or the Acquiror or any of their Affiliates in connection with the taking of any action contemplated thereby or by this Agreement. In furtherance and not in limitation of the foregoing, the parties each party hereto agree agrees to (i)(A) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and an appropriate filing pursuant to the Federal Law of Economic Competition with respect to the transactions contemplated hereby as promptly as practicable (and in any event in the case of the filing pursuant to (A) the HSR Act, within ten (10) Business Days after of the date of this Agreement), hereof and (B) the Federal Law of Economic Competition, within fifteen (15) Business Days of the date hereof) and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use reasonable best efforts the Federal Law of Economic Competition and 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 the Federal Law of Economic Competition as soon as practicable, and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) shall request and shall use reasonable best efforts to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party obtain early termination of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to waiting period provided for in the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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 ClosingHSR Act.
(b) In furtherance Subject to the terms and not conditions set forth in limitation this Agreement, without limiting the generality of the covenants undertakings referenced in Section 5.4(a), each of the parties contained Company (in the case of clauses (i) and (iii) of this Section 5.7(a5.4(b)) and the Acquiror (in all cases set forth below) agree to take or cause to be taken the following actions:
(1) the prompt provision to each and every Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition laws (“Government Antitrust Entity”) of non-privileged information and documents as defined under applicable Law requested by any Government Antitrust Entity or that are necessary, if any objections are asserted proper or advisable to permit the consummation of the transactions contemplated by this Agreement and (2) the prompt filing with the applicable Government Antitrust Entity of all appropriate notices and reports required under applicable Antitrust Laws with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted by this Agreement;
(or threatened to be institutedii) by the Federal Trade Commission, the Antitrust Division prompt use of the Department of Justice or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby, each of Parent, Merger Sub and the Company will use its reasonable best efforts to resolve avoid the entry of any subject objections permanent, preliminary or suits so as to permit temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated by this Agreement, including in order the proffer and agreement by the Acquiror of its willingness to resolve sell or otherwise dispose of, or hold separate pending such objections disposition, and promptly to effect the sale, liquidation, disposal and holding separate of, such assets, categories of assets or suits whichbusinesses or other segments of the Business or the Acquiror or the Acquiror’s subsidiaries (and the entry into agreements with, and submission to orders of, the relevant Government Antitrust Entity giving effect thereto), in any each case if not resolved, could reasonably be expected to prevent, materially impede or materially delay conditioned upon the consummation of the Merger transactions contemplated hereby 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 permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby by any Government Antitrust Entity; and
(iii) the prompt use of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding, review or inquiry of any kind that would make the consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby, including sellingany and all steps (including, holding separate or otherwise disposing the appeal thereof, the posting of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets bond or the assets taking of its Subsidiaries or the conducting steps contemplated by clause (ii) of its business in a manner which would resolve such action or proceeding, in each case no later than the Outside Date; provided, however, that, notwithstanding anything to the contrary in this Section 5.75.4(b)) necessary to resist, Parent and Merger Sub shall not be obligated vacate, modify, reverse, suspend, prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to take any actions, or agree permit such consummation on a schedule as close as possible to refrain from taking any actions, that, collectively, would have a material adverse effect on the combined business of the Parent Spinco and the Company and their respective Subsidiaries (including the Retained Subsidiaries), taken as a whole, after giving effect to the Parent Spin, the Merger and the other transactions that contemplated by this Agreement; provided, further, that, notwithstanding anything .
(c) Each party to this Agreement shall promptly notify the other party of any communication it receives from any Governmental Entity relating to the contrary matters that are the subject of this Agreement, shall permit the other party to review in this Section 5.7advance any proposed communication by such party to any Governmental Entity, and shall provide each other with copies of all correspondence, filings or communications between them or any of their Affiliates, on the Company will not take one hand, and any actionGovernmental Entity or members of its staff, or agree to refrain from taking any actionon the other hand, pursuant subject to this Section 5.7(b5.4. No party to this Agreement shall agree to participate in any meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry unless it consults with the other parties in advance and, to the extent permitted by such Governmental Entity, gives the other parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement, Section 5.3(b) without and to this Section 5.4(c) and compliance with applicable Law, the express written permission of Parentparties to this Agreement will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Del Monte Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior each of the parties hereto shall cooperate with the other parties hereto and use (and shall cause their respective Subsidiaries to the Effective Time, each party will use use) their respective reasonable best efforts to promptly (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, all things things, necessary, proper or advisable to cause the conditions to the Offer to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Law Antitrust Laws), and (ii) obtain all approvals, consents, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Mergertransactions contemplated hereby. For purposes hereof, “Antitrust Laws” means the Xxxxxxx Act, as amended, the Distribution Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, all applicable foreign antitrust laws and all other applicable Laws issued by a Governmental Entity that are designed or intended to prohibit, restrict or regulate actions having the other transactions contemplated by this Agreement and the Spin-Off Transaction Agreements, including using its reasonable best efforts to obtain all necessary actions purpose or non-actions, waivers, consents and approvals from Governmental Entities, including any required action effect of monopolization or non-action under Antitrust Laws, and to make all necessary registrations and filings and take all steps as may be necessary to obtain such required waiver, consent restraint of trade or approval from any Governmental Entity. lessening of competition through merger or acquisition.
(b) In furtherance and not in limitation of the foregoing, the parties (i) each party hereto agree agrees to (i)(A) make file 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 business days of the date of this Agreement)hereof, and (B) to supply as promptly as practicable any additional information and documentary material that may be reasonably requested pursuant to the HSR Act and use 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 as soon as practicable, and (ii) use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 6.6 necessary to cause the expiration or termination of the applicable waiting period under the HSR Act (including any extensions thereof) as soon as practicable; and (ii) the Company and Parent shall each use its reasonable best efforts to (A) take all action necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the transactions contemplated hereby and (B) if any state takeover statute or similar Law becomes applicable to any of the transactions contemplated hereby, take all action necessary to ensure that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the transactions contemplated hereby.
(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 or submission with a Governmental Entity in connection with the transactions contemplated hereby and in connection with any investigation or other inquiry by or before a Governmental Entity relating to the transactions contemplated hereby, including any proceeding initiated by a private party, and (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 Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Entity 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 hereby. Subject to applicable Laws relating to the exchange of information, each of the parties hereto shall have the right to review in advance, and to do, or cause to be donethe extent practicable each will consult the other on, all things necessary, proper or advisable under applicable Law to obtain all other required waivers, consents and approvals from Governmental Entities. The parties will also consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in advanceany filing made with, or written materials submitted to, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of third party and/or any party hereto Governmental Entity in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoingtransactions contemplated hereby, other than “4(c) documents” as that term is used in the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (B) to the extent permitted by such Governmental Entity, to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (D) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party rules and regulations of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Nothing in this Section 5.7(a) shall require the Company or its Subsidiaries 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.HSR Act
(bd) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.7(a)6.6, each of the parties hereto shall use its reasonable best efforts to resolve such objections, if any objections are any, as may be asserted by a Governmental Entity or other Person with respect to the transactions contemplated hereby under any Antitrust Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Antitrust Division of the Department of Justice or hereby. Without limiting any other applicable Governmental Entity challenging provision hereof, Parent and the Company shall each use its reasonable best efforts to (i) avoid the entry of, or to have vacated or terminated, any of the transactions contemplated hereby as violative of any Antitrust Law decree, order or which judgment that would otherwise preventrestrain, materially impede prevent or materially delay the consummation of the transactions contemplated hereby, on or before the Outside Date, including by defending through litigation on the merits any claim asserted in any court by any Person, and (ii) avoid or eliminate each of Parent, Merger Sub and every impediment under any Antitrust Law that may be asserted by any Governmental Entity with respect to the Company will use its reasonable best efforts to resolve any subject objections or suits transactions contemplated hereby so as to permit enable the consummation of the transactions contemplated by this Agreement, including in order hereby to resolve such objections or suits which, occur as soon as reasonably possible (and in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger or the other transactions contemplated hereby, including selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such action or proceeding, in each case event no later than the Outside Date; provided, however, that, notwithstanding ). Notwithstanding anything to the contrary in this Section 5.7herein, Parent and Merger Sub shall not be obligated under no obligation to (A) propose, negotiate, commit to or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any assets or businesses of Parent, the Company (or any of their respective Subsidiaries) or (B) otherwise take or commit to take any actionsactions that limit Parent or its Subsidiaries’ freedom of action with respect to, or agree its ability to refrain from taking any actionsretain, that, collectively, would have a material adverse effect on the combined business one or more of the Parent Spinco and businesses, product lines or assets of Parent, the Company and Company, or any of their respective Subsidiaries (including Subsidiaries, in each case, regardless of whether such measures could avoid the Retained Subsidiaries)entry of, taken as a wholeor effect the dissolution of, after giving any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect to of preventing or materially delaying the Parent Spin, consummation of the Merger and the other transactions contemplated by this Agreementhereby. The Company shall take such of the foregoing actions as Parent may request; provided, further, that, notwithstanding anything to that any such action is conditioned upon the contrary in this Section 5.7, consummation of the Company will not take any action, or agree to refrain from taking any action, pursuant to this Section 5.7(b) without the express written permission of ParentMerger.
Appears in 1 contract
