Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, including Section 6.4(d), Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to use its reasonable best efforts to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. (b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (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 and/or its counsel 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 Entity, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, and (iii) permit the other Party and/or its counsel to review any substantive communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent not prohibited by the DOJ, the FTC or such other Governmental Entity or other person, give the other Party and/or its counsel the opportunity to attend and participate in any substantive meeting, discussion or teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) Subject to Sections 6.4(d), in the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of Parent and the Company shall reasonably cooperate with each other and (ii) Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 2 contracts

Samples: Merger Agreement (Advanced Disposal Services, Inc.), Merger Agreement (Waste Management Inc)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, including Section 6.4(d), Parent shall use its ~~reasonable~~ best efforts to take, or cause to be taken, all actions and to use its ~~reasonable~~ best efforts to do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable under this Agreement and applicable Law to consummate and make effective the Merger and the other transactions contemplated by this ~~Agreement~~Agreement by the End Date (as may be extended in accordance with Section 8.1(c)). ~~Each Party agrees to~~Without limiting the generality of the foregoing, ~~as promptly as reasonably practicable and advisable~~Parent shall use its best efforts to obtain, ~~and in~~ or cause to be obtained, the expiration or termination of any ~~event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to~~ applicable waiting period under the HSR ~~Act. Each Party will cooperate~~ Act and any agreement with a Governmental Entity not to consummate the Merger and the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this ~~Agreement~~Agreement (the “Clearance”) by the End Date (as may be extended in accordance with Section 8.1(c)). Following the date that the Clearance is obtained and prior to the Closing, Parent shall take any actions within its control to maintain the effectiveness of, and shall comply with, and shall enforce any rights that Parent has thereunder to ~~assist~~ require any purchaser of any assets to be divested to comply with, the terms of, as applicable, any (i) proposed final judgment, consent decree or other similar or related agreement or commitment and ~~cooperate with the other Party in~~ (ii) purchase agreement entered into connection ~~with the foregoing~~therewith. (b) Subject to ~~Sections 6.4(d) and~~ Section 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (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 and/or its counsel 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 Entity, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated ~~hereby~~by this Agreement, and (iii) permit the other Party and/or its counsel to ~~review~~ review, and promptly provide, any substantive communication (written or oral), including drafts of any proposed final judgment, consent decree, divestiture agreement, or other similar or related agreement or commitment, given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent not prohibited by the DOJ, the FTC or such other Governmental Entity or other person, give the other Party and/or its counsel the opportunity to attend and participate in any substantive meeting, discussion or teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) ~~Subject to Sections 6.4(d), in~~ In the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of Parent and the Company shall reasonably cooperate with each other and (ii) Parent shall use its ~~reasonable~~ best efforts to contest, resist or resolve any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries ~~to,~~ to (i) propose, negotiate, commit to and effect, by consent decree, hold separate or asset preservation orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, to the extent required by the DOJ in order to obtain Clearance and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest ~~therein~~therein to the extent required by the DOJ in order to obtain Clearance; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, but consistent with its obligations under Section 6.4(a) and Section 6.4(d), Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence (including the provision of customer or other proprietary or commercially sensitive information, subject to “clean team” arrangements reasonably acceptable to the Company, but only so long as Parent is willing to provide such comparable information with respect to any of its assets being divested) and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter ~~into~~ into, and comply with, one or more agreements (each such agreement, a “Divestiture Agreement”) as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture ~~Action~~Action and shall not be deemed a “Material Contract” for any purpose under this Agreement. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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. Parent and Merger Sub hereby acknowledge and agree that the Company shall not be deemed to have breached or failed to perform any of its obligations under this Agreement (including for purposes of Section 7.2(b) and Section 8.2(b)(iv)) due to its failure to comply with any Divestiture Agreement, unless such failure to comply with any such Divestiture Agreement was a material breach of, or a failure to perform any of the covenants or a breach of the agreements contained in such Divestiture Agreement resulting from an act or failure to act by the Company (including acts or failures to act by the Company’s Representatives at the direction of the Company) with actual knowledge, or knowledge that a Person acting reasonably under the circumstances should have, that such act or failure to act, would or would be reasonably expected to result in or constitute a breach of or failure of performance under such Divestiture Agreement; provided, however, the foregoing shall not limit Parent’s or Merger Sub’s rights under Section 9.12 (Specific Performance) or the enforcement thereof with respect to any failure by the Company to comply with any of the covenants or agreements set forth in any Divestiture Agreement.” 6. Addition of Sections 6.18, 6.19 and 6.20. The Merger Agreement is hereby amended by adding new Sections 6.18, 6.19 and 6.20 as set forth below.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Waste Management Inc), Agreement and Plan of Merger (Advanced Disposal Services, Inc.)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d), Parent shall~~ each party will use ~~its~~ reasonable best efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement~~ applicable laws and ~~applicable Law~~ regulations to consummate ~~and make effective~~ the Offer, the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, Agreement as promptly as practicable and ~~advisable~~no party hereto shall take or cause to be taken any action which would reasonably be expected to prevent, ~~prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval,~~ impede or ~~other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with~~ delay the ~~Merger or any~~ consummation of the ~~transactions contemplated by this~~ Offer or the Merger. Without limiting the foregoing, the Company shall pay and satisfy all obligations and liabilities under the Prior Merger Agreement, including, without limitation, payment of the Termination Fee (as defined in the Prior Merger Agreement) and any fees and expenses due and payable pursuant to ~~assist and cooperate with~~ Section 8.3 of the ~~other Party in connection with the foregoing~~Prior Merger Agreement. (b) ~~Subject to Sections 6.4(d)~~ Each of Parent and ~~6.4(e), each of Parent~~Merger Sub, on the one hand, and the Company, on the other hand, ~~shall~~ shall, in connection with the efforts referenced in Section 6.8(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under Antitrust Law, use 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 proceeding initiated by a private party, ; (ii) keep the other ~~Party and/or its counsel~~ party reasonably ~~informed~~ informed, including by providing the other party with a copy, of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, ; and (iii) permit the other ~~Party and/or its counsel~~ party to review in advance any ~~substantive~~ communication planned to be given by it to, and consult with each other in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any ~~such~~ other U.S. or foreign Governmental Entity or, in connection with any proceeding by a private party, with any other ~~person~~Person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental Entity or other ~~person~~Person, give the other ~~Party and/or~~ party or its ~~counsel~~ representatives the opportunity to attend and participate in ~~any substantive meeting~~such meetings and conferences. Notwithstanding the foregoing, ~~discussion or teleconference. Parent and~~ the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section ~~6.4(b~~6.8(b) as “"Antitrust Counsel Only Material.” ". Such materials and the information contained therein shall be given only to the outside ~~antitrust~~ counsel regarding Antitrust Law of the recipient and will not be disclosed by ~~such~~ outside counsel to employees, ~~officers~~ officers, directors or ~~directors~~ consultants of the recipient or any of its affiliates unless express permission is obtained in advance from the source of the materials (the Company or Parent ~~or the Company,~~ as the case may be) or its legal counsel. Each of ~~Parent and~~ the Company and Parent shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required cause their respective outside counsel regarding Antitrust Law to comply with ~~applicable Law applicable to the Merger~~this Section 6.8(b). Notwithstanding anything to the contrary ~~contained~~ in this Section ~~6.4~~6.8(b), materials provided ~~pursuant~~ to ~~this Section 6.4(b)~~ the other party or its counsel may be redacted to ~~(x)~~ remove references concerning the valuation of the Company and privileged communications. For purposes of this Agreement, "Antitrust Law" means the Xxxxxxx Antitrust Act of 1890, as amended, the Xxxxxxx Act of 1914, as amended, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (iii) , the Federal Trade Commission Act, as amended, Foreign Antitrust and Investment Laws, 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. (c) In furtherance and not in limitation of the covenants of the parties contained in Section 6.8(a) and Section 6.8(b), 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 FTC, the DOJ or any other U.S. or foreign Governmental Entity or any private party 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 shall use reasonable best efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement~~, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns~~. (cd) Subject to ~~Sections 6.4(d~~the limitations set forth in Section 6.8(c), in the event that any ~~Action~~ administrative or judicial investigation, suit, action or other proceeding is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental Entity or ~~other persons~~ private party challenging the Offer, the Merger or ~~the~~ any other ~~transactions~~ transaction contemplated by this ~~Agreement under Antitrust Law~~Agreement, ~~(i)~~ or any other agreement contemplated hereby, or that otherwise would reasonably be expected to prevent, impede or delay the Offer or the Merger, or any such transaction or the satisfaction of any condition set forth in Exhibit A or ARTICLE 7, each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate in good faith with each other and ~~(ii) Parent shall~~ use its respective reasonable best efforts to ~~contest,~~ contest and resist ~~or resolve~~ any such ~~Action~~ action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other ~~Order~~order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 2 contracts

Samples: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Etrials Worldwide Inc.)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d), Parent shall~~ each party will use its ~~reasonable~~ best efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement~~ applicable laws and ~~applicable Law~~ regulations to consummate ~~and make effective~~ the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. (b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall ~~(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 and/or its counsel reasonably~~ party informed of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 Entity,~~ governmental authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated ~~hereby,~~ hereby and ~~(iii)~~ permit the other ~~Party and/or its counsel~~ party to review any ~~substantive~~ communication given by it to, and consult with each other in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any such other ~~Governmental Entity~~ governmental authority or, in connection with any proceeding by a private party, with any other person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other ~~Governmental Entity~~ applicable governmental authority or other person, give the other ~~Party and/or its counsel~~ party the opportunity to attend and participate in such meetings and conferences; provided, however, that a party hereto may request entry into a joint defense agreement as a condition to providing any ~~substantive meeting~~such materials and that, ~~discussion or teleconference. Parent~~ upon receipt of that request, the parties shall work in good faith to enter into a joint defense agreement to create and ~~the Company may, as each deems advisable~~ preserve attorney-client privilege in a form and ~~necessary, reasonably designate any competitively sensitive material provided~~ substance mutually acceptable to the ~~other under this Section 6.4(b~~parties. (b) ~~as “Antitrust Counsel Only Material.” Such materials~~ In furtherance and ~~the information contained therein shall be given only to the outside antitrust counsel~~ not in limitation of the ~~recipient and will not be disclosed by such outside counsel to employees, officers or directors~~ covenants of the ~~recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company~~parties contained above, ~~as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i)~~ if any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity objections are asserted with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) Subject to Sections 6.4(d), in the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under ~~Antitrust Law~~any antitrust law or if any suit is instituted (or threatened to be instituted) by the FTC, ~~(i)~~ the DOJ or any other applicable governmental authority or any private party challenging any of the transactions contemplated hereby as violative of any antitrust law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent and the Company shall ~~reasonably cooperate with each other and~~ use its reasonable commercial efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement; provided, however, that neither Parent nor any of its affiliates shall be required to (i) divest, hold separate (including by trust or otherwise) or otherwise dispose of, sell, assign or transfer any of their respective businesses, assets, investments, securities or rights of any kind or nature or (ii) ~~Parent shall use its reasonable best efforts to contest~~defend, contest or resist any action or ~~resolve any such Action and~~ proceeding or seek to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other ~~Order~~order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (dc) In ~~furtherance of~~ the ~~foregoing~~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 Merger or any other transaction contemplated by this Agreement, ~~Parent shall, and shall cause its subsidiaries to~~or any other agreement contemplated hereby, (i) ~~propose~~each of Parent, ~~negotiate~~Merger Sub and the Company shall 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, ~~commit to and effect~~lifted, ~~by consent~~ reversed or overturned any decree, ~~hold separate orders~~ judgment, injunction or ~~otherwise~~other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest thereintransactions contemplated by this Agreement, and (ii) ~~otherwise take~~ Parent and Merger Sub must defend, at their cost and expense, any action or ~~commit to take any actions that would limit Parent’s~~ actions, whether judicial or ~~its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action~~ administrative, in connection with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this ~~Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring~~Agreement. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 2 contracts

Samples: Merger Agreement (Jekogian Iii Nickolas W), Merger Agreement (Wilshire Enterprises Inc)

Further Action; Efforts. (a) ~~Subject to~~ Upon the terms and subject to the conditions of this Agreement, ~~including Section 6.4(d), Parent~~ each of the parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, and cooperate with each other in order to do, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement and~~ applicable Law to consummate the transactions contemplated by this Agreement at the earliest practicable date, including: (i) causing the preparation and ~~make effective~~ filing of all forms, registrations and notices required to be filed to consummate the Merger and the ~~other transactions contemplated~~ taking of such actions as are necessary to obtain any requisite consent under any applicable Law; (ii) defending all Actions by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or ~~other authorization or consent from,~~ before any Governmental Entity challenging this Agreement or ~~third party in each case~~ the consummation of the Merger; and (iii) resolving any objection asserted with respect to the transactions contemplated under this Agreement under any applicable Law raised by any Governmental Entity and preventing the entry of any court order, and vacating, lifting, reversing, or overturning any injunction, decree, ruling, order or other action of any Governmental Entity that ~~are set forth on Schedule 6.4(a)~~ would prevent, prohibit, restrict or ~~are otherwise required in connection with~~ delay the ~~Merger or any~~ consummation of the transactions contemplated by this Agreement~~, and to assist and cooperate with the other Party in connection with the foregoing~~. (b) ~~Subject~~ If a party receives a request for information or documentary material from any Governmental Entity with respect to ~~Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (i) cooperate in all respects with each other in connection with any filing~~ this Agreement or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other Party and/or its counsel 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 Entity, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and ~~(iii) permit~~ after consultation with the other ~~Party and/or its counsel~~ party, a response which is, at a minimum, in substantial compliance with such request. (c) The parties shall keep each other apprised of the status of matters relating to ~~review any substantive communication given~~ the completion of the transactions contemplated by ~~it to~~this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, ~~and consult~~ including: (i) cooperating with each other in ~~advance~~ connection with filings required to be made by any party under applicable 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 communications with such Governmental Entities. In particular, to the extent permitted by Law or appropriate Governmental Entity, no party will make any ~~meeting or conference with,~~ notification in relation to the ~~DOJ,~~ transactions contemplated hereunder without first providing the ~~FTC or any~~ 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 ~~Entity or~~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 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 applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notifying each other of any ~~proceeding~~ communications (and, unless precluded by ~~a private party~~Law, providing copies of any such communications that are in writing) from or with any ~~other person,~~ Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent ~~not prohibited~~ permitted by ~~the DOJ, the FTC~~ Law or ~~such other~~ Governmental Entity that each of the parties is entitled to attend any meetings with or other person, give the other Party and/or its counsel the opportunity to attend and participate in any substantive meeting, discussion or teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or appearances before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement~~, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns.~~; and (civ) ~~Subject~~ without prejudice to ~~Sections 6.4(d)~~any rights of the parties hereunder, consulting and cooperating in all respects with the ~~event that~~ other in defending all lawsuits and other proceedings by or before any ~~Action is commenced or threatened by a~~ Governmental Entity ~~or other persons~~ challenging ~~the Merger~~ this Agreement or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of Parent and the Company shall reasonably cooperate with each other and (ii) Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) ~~In furtherance of~~ Notwithstanding the foregoing, ~~Parent shall,~~ commercially and/or competitively sensitive information and ~~shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license~~ materials of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not a party will be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect provided to the ~~Merger) if such actions had been taken at the beginning of any such rolling 12~~other party on an outside counsel-~~month period; provided~~only basis while, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the ~~Company and its subsidiaries~~ extent feasible, making a version in which the ~~effectiveness of which is not conditioned on~~ commercial and/or competitively sensitive information has been redacted available to the ~~Closing occurring~~other party. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, If (i) ~~reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under~~ two full Business Days have elapsed since the ~~Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures~~ Effective Time and (ii) ~~enter into one~~ Parent has not made the deposits called for by Section 2.3(a), the parties agree they shall, at the Special Committee's request, take any and all steps as may be necessary or ~~more agreements as requested by Parent~~ appropriate in order to ~~be entered into by any~~ unwind the effect of ~~them~~ the filing of the Articles of Merger in order to place the parties, and their respective shareholders and owners, in the same positions they occupied prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any filing of the ~~businesses or assets~~ Articles of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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 ParentMerger.

Appears in 2 contracts

Samples: Merger Agreement (Harbin Electric, Inc), Merger Agreement (Harbin Electric, Inc)

Further Action; Efforts. (a) ~~Subject to~~ Upon the terms and subject to the conditions of set forth in this Agreement, ~~including Section 6.4(d)~~each of the parties hereto shall, ~~Parent~~ and shall cause their respective Subsidiaries to, use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions necessary, proper and advisable under applicable Laws to ~~use its reasonable best efforts~~ consummate the Transactions as promptly as practicable. In furtherance and not in limitation of the foregoing, each party hereto shall: (i) make an appropriate filing of a Notification and Report Form pursuant to ~~do, or cause~~ the HSR Act with respect to the Transactions as promptly as practicable and supply as promptly as practicable any additional information and documentary material that may be ~~done,~~ requested pursuant to the HSR Act; (ii) make any additional filings required by any applicable Competition Law and take all ~~things~~ other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under ~~this Agreement~~ the HSR Act or other Competition Laws, and comply with applicable ~~Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement. Each Party agrees to~~Foreign Antitrust Laws, as promptly as ~~reasonably practicable~~ practicable; and ~~advisable~~(iii) subject to applicable Laws relating to access to and the exchange of information, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use ~~its respective~~ commercially reasonable ~~best~~ efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. : (~~b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (i~~A) cooperate ~~in all respects~~ with each other in connection with any filing or submission and in connection with any investigation or other ~~inquiry, including~~ inquiry under or relating to any ~~proceeding initiated by a private party,~~ Competition Law; (iiB) keep the other ~~Party and/or its counsel reasonably~~ parties informed of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Authority and of any communication received or given in connection with any legal, administrative, arbitral or other proceeding by a private party, in each case regarding any of the ~~transactions contemplated hereby,~~ Transactions; and (~~iii~~C) permit the other ~~Party and/or its counsel~~ parties hereto to review in advance any ~~substantive~~ communication intended to be given by it to, and consult with ~~each~~ the other parties in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any such other Governmental ~~Entity or, in connection with any proceeding by a private party, with any other person~~Authority, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental ~~Entity or other person~~Authority, give the other ~~Party and/or its counsel~~ parties the opportunity to attend and participate in ~~any substantive meeting, discussion or teleconference. Parent~~ such meetings and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concernsconferences. (cb) ~~Subject to Sections 6.4(d~~In furtherance and not in limitation of the covenants of the parties contained in Section 5.4(a), in the event that any ~~Action~~ legal, administrative, arbitral or other proceeding is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental ~~Entity~~ Authority or ~~other persons~~ private party challenging any of the ~~Merger~~ Transactions or in the ~~other transactions contemplated by this Agreement under Antitrust Law~~event that any Governmental Authority shall otherwise object to any of the Transactions, ~~(i)~~ each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate with each other and use its respective reasonable efforts: (i) to vigorously defend, contest and resist any such proceeding; (ii) ~~Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and~~ to have vacated, lifted, reversed or overturned any ~~decree~~injunction, order, judgment, ~~injunction~~ ruling or ~~other Order~~decree, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, Transactions; and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Dateiii) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurringresolve objections. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 2 contracts

Samples: Merger Agreement (Vitria Technology Inc), Merger Agreement (Blue Martini Software Inc)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including~~ each of the parties hereto shall use reasonable best efforts to obtain promptly all necessary authorizations, consents, orders and approvals of all federal, state and local and foreign regulatory bodies and officials for its execution and delivery of, and the performance by it of its obligations pursuant to, this Agreement. The parties shall cooperate with each other in promptly seeking to obtain all such authorizations, consents, orders and approvals, it being understood that none of the parties hereto is required to pay any fees or other payments to any such regulatory bodies or officials in order to obtain any such authorization, consent, order or approval. Notwithstanding the provision of the preceding sentence, the Purchasers shall pay all filing fees associated with any filings under applicable Foreign Antitrust Law or Regulatory Requirements. (b) Each of the parties hereto shall, in connection with the efforts referenced in Section ~~6.4(d)~~5.5(a) to obtain all necessary approvals and authorizations for the transactions contemplated by this Agreement under any Foreign Antitrust Laws or Regulatory Requirements, ~~Parent shall~~ use its reasonable best efforts to take, or cause to be taken, all actions and to use its reasonable best efforts to do, or cause to be done, all things reasonably necessary, proper or advisable under this Agreement and applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. (b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall : (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 and/or its counsel~~ parties reasonably informed of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, ; and (iii) permit the other ~~Party and/or its counsel~~ parties to review any ~~substantive~~ communication given by it to, and consult with each other in advance of any meeting or conference ~~with, the DOJ, the FTC or~~ with any ~~such other~~ Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ, the FTC or such other~~ relevant Governmental Entity or other person, give the other ~~Party and/or its counsel~~ party the opportunity to attend and participate in such meetings and conferences. (c) In the event that any ~~substantive meeting, discussion~~ administrative or ~~teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided~~ judicial action or proceeding is instituted (or threatened to ~~the other under this Section 6.4(b~~be instituted) ~~as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed~~ by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any a Governmental Entity ~~in connection with~~ or private party challenging any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions transaction contemplated by this Agreement, ~~(y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) Subject to Sections 6.4(d)~~or any other agreement contemplated hereby, in the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of ~~Parent and~~ the ~~Company~~ parties hereto shall ~~reasonably~~ cooperate in all respects with each other and ~~(ii) Parent shall~~ use its respective reasonable best efforts to ~~contest,~~ contest and resist ~~or resolve~~ any such ~~Action~~ action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other ~~Order~~order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) ~~In furtherance of~~ Notwithstanding the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, foregoing or any ~~interest therein~~other provision of this Agreement, ~~and (ii~~nothing in this Section 5.5 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) ~~otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to~~so long as such party has, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to ~~any date between the date hereof and the Closing Date) to Parent~~such termination, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action complied in all material respects with ~~respect to the Company and~~ its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to obligations under this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law5.5. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 2 contracts

Samples: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)

Further Action; Efforts. (a) ~~Subject to~~ Upon the terms and subject to the conditions of this Agreement, ~~including Section 6.4(d), Parent~~ each of the parties shall use ~~its~~ reasonable best efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, and cooperate with each other in order to do, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement and~~ applicable Law (including under any Antitrust Law) to consummate ~~and make effective~~ the ~~Merger and the other~~ transactions contemplated by this ~~Agreement. Each Party agrees to~~Agreement at the earliest practicable date, including (i) as promptly as ~~reasonably~~ practicable making all necessary filings, and ~~advisable~~thereafter make any other required submissions, with respect to this Agreement and the Merger required under the Securities Act, the Exchange Act or any other applicable securities Laws and (ii) as promptly as practicable, providing any notice to, and using reasonable best efforts to obtain any consent, waiver or approval from, any third party required in connection with the transactions contemplated by this Agreement under any Contract to which such party is a party. Notwithstanding the foregoing or anything else to contrary, nothing in this Agreement shall require a waiver of any condition set forth in Article VI. (b) In furtherance and not in limitation of the provisions of Section 5.7(a), each of the parties, as applicable, agrees to prepare and file as promptly as practicable, and in any event by no later than ~~fifteen (15)~~ five Business Days ~~after~~ from the date of this Agreement, ~~make~~ an appropriate ~~filings~~ filing of a Notification and Report ~~Forms~~ Form pursuant to the HSR Act. ~~Each Party will cooperate with~~ Parent shall pay all filing fees for the filings required under the HSR Act by the Company and Parent. (c) The parties shall keep each other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change apprised of ~~ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with~~ the ~~Merger or any~~ status of matters relating to the completion of the transactions contemplated by this ~~Agreement,~~ Agreement and ~~to assist and cooperate~~ work cooperatively in connection with obtaining the ~~other Party~~ approvals of or clearances from each applicable Governmental Entity required in connection with the ~~foregoing.~~transaction contemplated by this Agreement, including, to the extent related thereto: ~~(b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall~~ (i) ~~cooperate in all respects~~ cooperating with each other in connection with filings required to be made by any ~~filing~~ party under any Antitrust Law and in relation to each step of the procedure before the relevant Governmental Entities, and informing each other as to the contents of all substantive communications with such Governmental Entities. In particular, to the extent permitted by Law or Governmental Entity, no party will make any notification or other submission in relation to the transactions contemplated hereunder without first providing the other party with a true, correct and complete copy of such notification in draft form and giving such other party a reasonable opportunity to comment before it is filed with the relevant Governmental Entities, and such first party shall consider in good faith all reasonable comments timely made by the other party in this respect; (ii) furnishing to the other party all information within its possession that is required for any application or other submission to be made by the other party pursuant to the applicable Law in connection with ~~any investigation or~~ the transactions contemplated by this Agreement; (iii) promptly notifying each other ~~inquiry, including any proceeding initiated by a private party, (ii) keep the other Party and/or its counsel reasonably informed~~ of any ~~communication received~~ communications from or with any Governmental Entity with respect to the transactions contemplated by ~~such Party from~~this Agreement and providing, to the extent permitted by Law 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 Entity, ~~and of any communication received or given in connection with any proceeding by a private party, in~~ each case regarding any of the transactions contemplated hereby, and (iii) permit the other Party and/or its counsel to review any substantive communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent not prohibited by the DOJ, the FTC or such other Governmental Entity or other person, give the other Party and/or its counsel the party an opportunity to attend ~~and participate in~~ any ~~substantive meeting, discussion~~ meetings with or ~~teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the~~ other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or appearances before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) Subject to Sections 6.4(d), in the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of Parent and the Company shall reasonably cooperate with each other and (ii) Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; ~~provided~~and (iv) consulting and cooperating with one another in connection with all analyses, ~~that Parent shall give the Company the opportunity to participate~~ appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in ~~such discussions, negotiations~~ connection with proceedings under or ~~other proceedings~~ relating to the ~~extent not prohibited by applicable Law~~Antitrust Laws. (fd) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting Notwithstanding the foregoing, each party may in good faith designate commercially and/or competitively sensitive information and materials of that party as “outside counsel only,” in which case the ~~Company will, and~~ information will ~~cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may~~ be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior made available only to the ~~Closing with respect~~ receiving party’s outside counsel. (e) For purposes of this Agreement, “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 all other Laws that are designed or intended to ~~any transaction to divest~~prohibit, ~~hold separate~~ restrict or ~~otherwise take any action that would limit~~ regulate actions having the ~~Company’s~~ purpose or ~~its subsidiaries’ freedom~~ effect of ~~action, ownership~~ monopolization or ~~control with respect to,~~ restraint of trade or ~~their ability to retain~~ lessening of competition through merger or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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 Parentacquisition.

Appears in 2 contracts

Samples: Merger Agreement (Newport Corp), Merger Agreement (MKS Instruments Inc)

Further Action; Efforts. (a) ~~Subject to~~ Upon the terms and subject to the conditions of set forth in this Agreement, ~~including Section 6.4(d)~~each of the parties hereto shall, ~~Parent~~ and shall cause their respective Subsidiaries to, use ~~its~~ all commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions necessary, proper and advisable under applicable Laws to ~~use its reasonable best efforts to do~~consummate the Transactions as promptly as practicable. In furtherance and not in limitation of the foregoing, ~~or cause to be done,~~ each party hereto shall: (i) make any filings required by any applicable Competition Law and take all ~~things~~ other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under ~~this Agreement~~ such applicable Competition Laws, and comply with applicable ~~Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement. Each Party agrees to~~Foreign Antitrust Laws, as promptly as ~~reasonably practicable~~ practicable; and ~~advisable~~(ii) subject to applicable Laws relating to access to and the exchange of information, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use ~~its respective~~ all commercially reasonable ~~best~~ efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. : (~~b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (i~~A) cooperate ~~in all respects~~ with each other in connection with any filing or submission and in connection with any investigation or other ~~inquiry, including~~ inquiry under or relating to any ~~proceeding initiated by a private party,~~ Competition Law; (iiB) keep the other ~~Party and/or its counsel reasonably~~ parties informed of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Authority and of any communication received or given in connection with any legal, administrative, arbitral or other proceeding by a private party, in each case regarding any of the ~~transactions contemplated hereby,~~ Transactions; and (~~iii~~C) permit the other ~~Party and/or its counsel~~ parties hereto to review in advance any ~~substantive~~ communication intended to be given by it to, and consult with ~~each~~ the other parties in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any such other Governmental ~~Entity or, in connection with any proceeding by a private party, with any other person~~Authority, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental ~~Entity or other person~~Authority, give the other ~~Party and/or its counsel~~ parties the opportunity to attend and participate in ~~any substantive meeting, discussion or teleconference. Parent~~ such meetings and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concernsconferences. (cb) ~~Subject to Sections 6.4(d~~In furtherance and not in limitation of the covenants of the parties contained in Section 5.4(a), in the event that any ~~Action~~ legal, administrative, arbitral or other proceeding is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental ~~Entity~~ Authority or ~~other persons~~ private party challenging any of the ~~Merger~~ Transactions or in the ~~other transactions contemplated by this Agreement under Antitrust Law~~event that any Governmental Authority shall otherwise object to any of the Transactions, ~~(i)~~ each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate with each other and use its respective reasonable efforts: (i) to vigorously defend, contest and resist any such proceeding; (ii) ~~Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and~~ to have vacated, lifted, reversed or overturned any ~~decree~~injunction, order, judgment, ~~injunction~~ ruling or ~~other Order~~decree, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~Merger~~ Transactions; and (iii) to resolve objections. Notwithstanding anything herein to the contrary, nothing in this Agreement shall be deemed to require Parent to (x) agree to any divestiture by Parent or the ~~other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose~~ Company or any ~~such Actions, whether judicial~~ of Parent's subsidiaries or ~~administrative, against it in connection with the Merger~~ affiliates of shares of capital stock or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any ~~assets~~business, ~~operations, properties, products, rights, licenses, services~~ assets or ~~businesses~~ property of Parent or its subsidiaries or affiliates or of the Company or its ~~subsidiaries~~affiliates, or the imposition of any ~~interest therein~~material limitation on the ability of any of them to conduct their businesses or to own or exercise control of such assets, properties and stock, or (iiy) ~~otherwise take or commit to~~ take any ~~actions~~ action under this Section 5.4 requested by any Governmental Authority that ~~would limit Parent’s~~ has the authority to enforce any Competition Law or ~~its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to~~Foreign Antitrust Law, that seeks, or authorizes its ~~or their ability~~ staff to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregateseek, a ~~reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior~~ preliminary injunction or restraining order to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the enjoin consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurringMerger. (ec) ~~Notwithstanding anything in this Agreement to~~ For purposes hereof, "Competition Laws" means the ~~contrary~~Xxxxxxx Act, ~~Parent shall control~~ as amended, the ~~strategy for obtaining all consents~~Xxxxxxx Act, ~~approvals~~as amended, ~~or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4~~the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, ~~including by directing~~ as amended, the ~~timing~~Federal Trade Commission Act, ~~nature~~as amended, and ~~substance~~ all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of ~~any filings, forms, statements, commitments, submissions and communications contemplated by~~ monopolization or ~~made in accordance with this Section 6.4, as well as the manner in which to contest~~ restraint of trade or ~~otherwise respond, by litigation~~ lessening of competition through merger or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Lawacquisition. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 1 contract

Samples: Merger Agreement (Broadvision Inc)

Further Action; Efforts. ~~(a)~~ Pursuant to the terms of the Merger Agreement, prior to the Effective Time, Op-Tech agrees to use its reasonable best efforts to obtain any third party consents, approvals or waivers with respect to any contracts to which Op-Tech or its subsidiary is a party as may be necessary or appropriate for the consummation of the transactions contemplated by the Merger Agreement or required by the terms of any contract as a result of the execution, performance or consummation of the subject transactions. Subject to the terms and conditions of ~~this~~ the Merger Agreement, ~~including Section 6.4(d)~~prior to the Effective Time, ~~Parent shall~~ each of NRC, Purchaser and Op-Tech agrees to use its reasonable best efforts to take, or cause to be taken, all other actions and ~~to use its reasonable best efforts to~~ do, or cause to be done, all other things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement and~~ applicable ~~Law~~ law to consummate and make effective the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by ~~this~~ the Merger Agreement. See Section 15—"Certain Legal Matters; Regulatory Approvals." Further, ~~and to assist and cooperate with~~ the ~~other Party in connection with the foregoing. (b) Subject to Sections 6.4(d) and 6.4(e),~~ Merger Agreement provides that each of ~~Parent~~Op-Tech, on the one hand, and ~~the Company~~NRC and Purchaser, on the other hand, ~~shall~~ will (i1) 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, (ii2) keep the other ~~Party and/or its counsel~~ party reasonably informed of any communication received by such ~~Party~~ 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~~ party to any ~~other~~ U.S. or foreign ~~Governmental Entity,~~ governmental authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding ~~any of~~ the transactions contemplated ~~hereby,~~ by the Merger Agreement and (~~iii~~3) permit the other ~~Party and/or its counsel~~ party to review any ~~substantive~~ communication given by it to, and consult with each other in advance of any meeting or conference ~~with, the DOJ, the FTC or~~ with any ~~such other Governmental Entity~~ governmental authority or, in connection with any proceeding by a private party, with any other person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ, the FTC or such other Governmental Entity~~ applicable governmental authority or other person, give the other ~~Party and/or its counsel~~ party the opportunity to attend and participate in such meetings and conferences. If any substantive meeting, discussion or teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity objections are asserted with respect to the transactions contemplated by the Merger ~~(and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request~~ Agreement by any ~~official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement~~ governmental authority or any ~~information required to comply with applicable Law applicable to~~ private party challenging the ~~Merger. Notwithstanding anything to~~ subject transactions as violating any antitrust law, or which would prevent, materially impede or materially delay the ~~contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation~~ consummation of ~~the Company and~~ the transactions contemplated by ~~this~~ the Merger Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) Subject to Sections 6.4(d), in the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of ~~Parent~~ NRC, Purchaser and ~~the Company shall reasonably cooperate with each other and (ii) Parent shall~~ Op-Tech will use its reasonable best efforts to ~~contest, resist or~~ resolve any such ~~Action~~ objections or suits so as to permit consummation of the transactions contemplated by the Merger 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 consummation of the subject transactions. If any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a governmental authority or a private party challenging the Merger or any other transaction contemplated by the Merger Agreement, each of NRC, Purchaser and Op-Tech will cooperate in all respects with each other and 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~~order, whether temporary, preliminary or permanent, that is in effect and ~~that~~ prohibits, prevents or restricts consummation of the ~~Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof)~~subject transactions. However, ~~and oppose any such Actions, whether judicial or administrative, against it in connection with~~ the Merger Agreement does not obligate NRC, Purchaser or any of their respective affiliates to agree to (and neither the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent Op-Tech or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company subsidiary will, ~~and will cause its subsidiaries to,~~ without the prior written consent of NRC) (i1) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divestsell, hold separate or otherwise ~~take~~ dispose of all or a portion of its respective business, assets or properties, or conduct its business in a specified manner, (2) 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, (3) commence or defend any action ~~that would limit the Company’s~~ or ~~its subsidiaries’ freedom~~ claim in respect of any threatened action, ~~ownership~~ (4) limit in any manner whatsoever the ability of such entities to conduct, own, operate or control ~~with respect to~~any of their respective businesses, assets or ~~their ability to retain~~ properties or ~~hold~~of the businesses, ~~directly~~ properties or ~~indirectly,~~ assets of Op-Tech and its subsidiary or (5) waive any of the ~~businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the~~ conditions to consummation of the transactions ~~provided for in any such agreement for a Company Divestiture Action will be conditioned upon~~ contemplated by the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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 ParentMerger Agreement.

Appears in 1 contract

Samples: Offer to Purchase (NRC Us Holding Company, LLC)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d)~~prior to the Effective Time, each of the Company, Parent ~~shall use its reasonable best efforts to take~~and Merger Sub shall, as promptly as practicable, take or cause to be taken, all other actions and ~~to use its reasonable best efforts to~~ do, or cause to be ~~done,~~ done all other things ~~reasonably~~ necessary, proper or advisable ~~under this Agreement and applicable Law~~ to consummate the Transactions. (b) In furtherance and ~~make effective~~ not in limitation of the ~~Merger~~ provisions of Section 6.08(a), Parent and the ~~other transactions contemplated by this Agreement. Each Party agrees to~~Company shall (i) make or cause to be made any filings (or draft filings, where applicable) required of each of them or any of their respective Affiliates with respect to the Requisite Regulatory Approvals, the SZSE Approval or under Antitrust Laws with respect to the Transactions as promptly as ~~reasonably practicable and advisable~~practicable, and in any event ~~no later~~ not less than ~~fifteen~~ twenty (1520) Business ~~Days~~ Days, after the date of this Agreement, ~~make appropriate filings of Notification~~ and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. (~~b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (i~~ii) cooperate ~~in all respects~~ with each other in connection with any such filing ~~or submission~~ and in connection with resolving any investigation or other ~~inquiry, including~~ inquiry of any ~~proceeding initiated by a private party, (ii) keep~~ Governmental Authority under any applicable Laws with respect to any such filing or any such transaction. Each such party shall promptly inform the other ~~Party and/or its counsel reasonably informed~~ party hereto of any oral communication ~~received~~ with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other party hereto prior notice of the meeting and, to the extent permitted by such ~~Party from, or given by such Party to~~Governmental Authority, the ~~Federal Trade Commission (the “FTC”)~~opportunity to attend and/or participate. Subject to applicable Law, the ~~Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Entity,~~ parties hereto will consult and ~~of any communication received or given~~ cooperate with one another in connection with any ~~proceeding~~ analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by a private party, in each case regarding any of the transactions contemplated hereby, and (iii) permit the other Party and/or its counsel to review any substantive communication given by it to, and consult with each other in advance or on behalf of any ~~meeting~~ party hereto relating to the Requisite Regulatory Approvals or ~~conference with~~proceedings under Antitrust Laws. Notwithstanding the foregoing, the ~~DOJ, the FTC or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other person,~~ Company acknowledges and agrees that it will not be entitled to ~~the extent not prohibited by the DOJ, the FTC or such other Governmental Entity or other person, give the other Party and/or its counsel the opportunity to attend and~~ participate in any ~~substantive meeting~~formal meeting with any Chinese Governmental Authority, ~~discussion or teleconference.~~ provided, that Parent ~~and~~ shall provide the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official with summaries of any ~~Governmental Entity in connection~~ meetings with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Chinese Governmental ~~Entity with respect to the Merger (and shall keep the other Party informed as to the status of any~~ Authority promptly after such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concernsmeeting. (c) ~~Subject~~ In furtherance and not in limitation of the provisions of this Section 6.08, Parent shall not, and shall not permit any of its Affiliates to, acquire or agree to ~~Sections 6.4(d)~~acquire by merging or consolidating with, in or by purchasing a substantial portion of the ~~event that~~ assets of or equity in, or by any ~~Action is commenced~~ other manner, any person or ~~threatened by~~ portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into a ~~Governmental Entity or other persons challenging the Merger~~ definitive agreement relating to or the ~~other transactions contemplated by this Agreement under Antitrust Law~~consummation of such acquisition, merger or consolidation would reasonably be expected to (i) ~~each~~ impose any delay in the obtaining of, or significantly increase the risk of ~~Parent and~~ not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the ~~Company shall reasonably cooperate with each other and~~ Transactions or the expiration or termination of any applicable waiting period, (ii) ~~Parent shall use its reasonable best efforts to contest, resist or resolve~~ significantly increase the risk of any such Action 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 Governmental Authority entering an order prohibiting the consummation of the ~~Merger~~ Transactions or (iii) delay the ~~other transactions contemplated by this Agreement so as to permit such~~ consummation ~~no later than~~ of the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreementtransactions. (d) In furtherance and not in limitation of the ~~foregoing~~provisions of this Section 6.08, Parent, on behalf of itself and each of its Affiliates, further agrees that Parent and its Affiliates shall, ~~and shall cause its subsidiaries to~~to the extent necessary to obtain the waiver or consent from any Governmental Authority or expiration or termination of any waiting period under any of the Antitrust Laws, with respect to the Transactions or to avoid the entry of or have lifted, vacated or terminated any writ, injunction, judgment, decree or executive order that enjoins, restrains or otherwise makes illegal the consummation of the Transactions, to take the following actions: (i) propose, negotiate, consent to, offer to undertake, commit to and effect, by consent decree, hold separate ~~orders~~ order, trust or otherwise, the sale, ~~divesture, disposition,~~ divestiture or ~~license~~ disposition (including by licensing any intellectual property) of any ~~assets, operations, properties, products, rights, licenses, services~~ assets of the Company and its Subsidiaries and/or any other assets or businesses of Parent or any of its ~~subsidiaries~~ Affiliates (or ~~the Company or its subsidiaries,~~ equity interests held by Parent or any ~~interest therein, and~~ of its Affiliates in entities with assets or businesses); (ii) terminate any existing relationships and contractual rights and obligations; (iii) otherwise ~~take or~~ offer to take, commit to take or take any ~~actions~~ action that ~~would limit Parent’s or~~ it is capable of taking that limits its ~~subsidiaries’ or the Company’s or its subsidiaries’~~ freedom of action with respect to, or its ~~or their~~ ability to ~~retain~~ retain, any ~~assets, operations, properties, products, rights, licenses, services, businesses,~~ of the assets of the Company and its Subsidiaries and/or any other assets or businesses of Parent or any of its ~~subsidiaries~~ Affiliates (or equity interests held by Parent or any of its Affiliates in entities with assets or businesses); and (iv) take promptly, in the event that any writ, injunction, judgment, decree or executive order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the Transactions illegal or that would prevent or delay consummation of the transactions contemplated by this Agreement, any and all steps (including the appeal thereof, the posting of a bond or the ~~Company~~ taking of the steps contemplated by subclauses (i), (ii) and (iii) of this Section 6.08(d)) necessary to vacate, modify or ~~its subsidiaries~~suspend such writ, injunction, judgment, decree or ~~any interest therein~~executive order, in each case of subclauses (i), (ii), (iii) and (iv), to allow the Closing to occur no later than the Outside Date; provided, however, that neither Parent nor any of its Affiliates shall ~~not~~ be required to propose, commit to or ~~obligated to take or agree to take~~ effect any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, action that ~~any such actions are~~ is not conditioned upon the consummation of the ~~Merger and the transactions contemplated by~~ Transactions. Nothing in this Agreement imposes any obligation on Parent and ~~that~~ its Affiliates as to any other interests or holdings of Parent and its Affiliates either prior to or after the ~~Company shall not be obligated to take any action with respect~~ Closing. Notwithstanding anything to the ~~Company~~ contrary in this Agreement, no action taken by Parent and its ~~subsidiaries~~ Affiliates pursuant to this Section 6.08 shall entitle Parent to any reduction in the ~~effectiveness of which is not conditioned on the Closing occurring~~Merger Consideration. (e) ~~Notwithstanding anything in this Agreement to the contrary~~Each party hereto shall, ~~Parent shall control the strategy for obtaining~~ upon request by any other party, furnish such other party with all ~~consents~~information concerning itself, ~~approvals~~its Subsidiaries, ~~or waivers that~~ directors, officers and shareholders and such other matters as may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by reasonably necessary or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent advisable in connection with ~~obtaining~~ the Proxy Statement or any ~~actions~~other statement, ~~consents~~filing, ~~undertakings~~notice, ~~approvals~~ submission or ~~waivers~~ application made by or ~~from any Governmental Entity for or in connection with~~on behalf of Parent, ~~and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging~~Merger Sub, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of ~~its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in~~ their respective Affiliates to any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with Third Party and/or any Governmental ~~Entity~~ Authority in connection 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~~Transactions.

Appears in 1 contract

Samples: Merger Agreement (Avolon Holdings LTD)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d), Parent shall~~ each party will use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement~~ applicable laws and ~~applicable Law~~ regulations to consummate ~~and make effective~~ the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, Agreement as promptly as practicable and ~~advisable~~no party hereto shall take or cause to be taken any action which would reasonably be expected to prevent, ~~prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval,~~ impede or ~~other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with~~ delay the ~~Merger or any~~ consummation of the ~~transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing~~Merger. (b) ~~Subject to Sections 6.4(d)~~ Each of Parent and ~~6.4(e), each of Parent~~Merger Sub, on the one hand, and the Company, on the other hand, ~~shall~~ shall, in connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under Antitrust Law, use commercially reasonable 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 proceeding initiated by a private party, ; (ii) keep the other ~~Party and/or its counsel~~ party reasonably ~~informed~~ informed, including by providing the other party with a copy, of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, ; and (iii) permit the other ~~Party and/or its counsel~~ party to review in advance any ~~substantive~~ communication planned to be given by it to, and consult with each other in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any ~~such~~ other U.S. or foreign Governmental Entity or, in connection with any proceeding by a private party, with any other ~~person~~Person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental Entity or other ~~person~~Person, give the other ~~Party and/or~~ party or its ~~counsel~~ representatives the opportunity to attend and participate in ~~any substantive meeting~~such meetings and conferences. Notwithstanding the foregoing, ~~discussion or teleconference. Parent and~~ the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section ~~6.4(b~~6.7(b) as “Antitrust Counsel Only Material.” ”. Such materials and the information contained therein shall be given only to the outside ~~antitrust~~ counsel regarding Antitrust Law of the recipient and will not be disclosed by ~~such~~ outside counsel to employees, ~~officers~~ officers, directors or ~~directors~~ consultants of the recipient or any of its affiliates unless express permission is obtained in advance from the source of the materials (the Company or Parent ~~or the Company,~~ as the case may be) or its legal counsel. Each of ~~Parent and~~ the Company and Parent shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required cause their respective outside counsel regarding Antitrust Law to comply with ~~applicable Law applicable to the Merger~~this Section 6.7(b). Notwithstanding anything to the contrary ~~contained~~ in this Section ~~6.4~~6.7(b), materials provided ~~pursuant~~ to ~~this Section 6.4(b)~~ the other party or its counsel may be redacted to ~~(x)~~ remove references concerning the valuation of the Company and privileged communications. For purposes of this Agreement, “Antitrust Law” means the Xxxxxxx Antitrust Act of 1890, as amended, the Xxxxxxx Act of 1914, as amended, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (iii) , the Federal Trade Commission Act, as amended, Foreign Antitrust and Investment Laws, 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. (c) In furtherance and not in limitation of the covenants of the parties contained in Section 6.7(a) and Section 6.7(b), 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 FTC, the DOJ or any other U.S. or foreign Governmental Entity or any private party 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 shall use commercially reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement~~, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns~~. (cd) Subject to ~~Sections 6.4(d~~the limitations set forth in Section 6.7(c), in the event that any ~~Action~~ administrative or judicial investigation, suit, action or other proceeding is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental Entity or ~~other persons~~ private party challenging the Merger or ~~the~~ any other ~~transactions~~ transaction contemplated by this ~~Agreement under Antitrust Law~~Agreement, ~~(i)~~ or any other agreement contemplated hereby, or that otherwise would reasonably be expected to prevent, impede or delay the Merger, or any such transaction or the satisfaction of any condition set forth in Exhibit A or ARTICLE 7, each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate in good faith with each other and ~~(ii) Parent shall~~ use its respective commercially reasonable ~~best~~ efforts to ~~contest,~~ contest and resist ~~or resolve~~ any such ~~Action~~ action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other ~~Order~~order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 1 contract

Samples: Merger Agreement (Merge Healthcare Inc)

Further Action; Efforts. (a) ~~Subject to~~ Upon the terms and subject to the conditions of set forth in this Agreement, ~~including Section 6.4(d)~~each of the parties hereto shall, ~~Parent~~ and shall cause their respective Subsidiaries to, use ~~its~~ all commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions necessary, proper and advisable under applicable Laws to ~~use its reasonable best efforts to do~~consummate the Transactions as promptly as practicable. In furtherance and not in limitation of the foregoing, ~~or cause to be done,~~ each party hereto shall: (i) make any filings required by any applicable Competition Law and take all ~~things~~ other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under ~~this Agreement~~ such applicable Competition Laws, and comply with applicable ~~Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement. Each Party agrees to~~Foreign Antitrust Laws, as promptly as ~~reasonably practicable~~ practicable; and ~~advisable~~(ii) subject to applicable Laws relating to access to and the exchange of information, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use ~~its respective~~ all commercially reasonable ~~best~~ efforts to, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. : (~~b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (i~~A) cooperate ~~in all respects~~ with each other in connection with any filing or submission and in connection with any investigation or other ~~inquiry, including~~ inquiry under or relating to any ~~proceeding initiated by a private party,~~ Competition Law; (iiB) keep the other ~~Party and/or its counsel reasonably~~ parties informed of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Authority and of any communication received or given in connection with any legal, administrative, arbitral or other proceeding by a private party, in each case regarding any of the ~~transactions contemplated hereby,~~ Transactions; and (~~iii~~C) permit the other ~~Party and/or its counsel~~ parties hereto to review in advance any ~~substantive~~ communication intended to be given by it to, and consult with ~~each~~ the other parties in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any such other Governmental ~~Entity or, in connection with any proceeding by a private party, with any other person~~Authority, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental ~~Entity or other person~~Authority, give the other ~~Party and/or its counsel~~ parties the opportunity to attend and participate in ~~any substantive meeting, discussion or teleconference. Parent~~ such meetings and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concernsconferences. (cb) ~~Subject to Sections 6.4(d~~In furtherance and not in limitation of the covenants of the parties contained in Section 5.4(a), in the event that any ~~Action~~ legal, administrative, arbitral or other proceeding is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental ~~Entity~~ Authority or ~~other persons~~ private party challenging any of the ~~Merger~~ Transactions or in the ~~other transactions contemplated by this Agreement under Antitrust Law~~event that any Governmental Authority shall otherwise object to any of the Transactions, ~~(i)~~ each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate with each other and use its respective reasonable efforts: (i) to vigorously defend, contest and resist any such proceeding; (ii) ~~Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and~~ to have vacated, lifted, reversed or overturned any ~~decree~~injunction, order, judgment, ~~injunction~~ ruling or ~~other Order~~decree, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the ~~Merger~~ Transactions; and (iii) to resolve objections. Notwithstanding anything herein to the contrary, nothing in this Agreement shall be deemed to require Parent to (x) agree to any divestiture by Parent or the ~~other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose~~ Company or any ~~such Actions, whether judicial~~ of Parent’s subsidiaries or ~~administrative, against it in connection with the Merger~~ affiliates of shares of capital stock or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any ~~assets~~business, ~~operations, properties, products, rights, licenses, services~~ assets or ~~businesses~~ property of Parent or its subsidiaries or affiliates or of the Company or its ~~subsidiaries~~affiliates, or the imposition of any ~~interest therein~~material limitation on the ability of any of them to conduct their businesses or to own or exercise control of such assets, properties and stock, or (iiy) ~~otherwise take or commit to~~ take any ~~actions~~ action under this Section 5.4 requested by any Governmental Authority that ~~would limit Parent’s~~ has the authority to enforce any Competition Law or ~~its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to~~Foreign Antitrust Law, that seeks, or authorizes its ~~or their ability~~ staff to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregateseek, a ~~reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior~~ preliminary injunction or restraining order to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the enjoin consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurringMerger. (ec) ~~Notwithstanding anything in this Agreement to~~ For purposes hereof, “Competition Laws” means the ~~contrary~~Sxxxxxx Act, ~~Parent shall control~~ as amended, the ~~strategy for obtaining all consents~~Cxxxxxx Act, ~~approvals~~as amended, ~~or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4~~the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, ~~including by directing~~ as amended, the ~~timing~~Federal Trade Commission Act, ~~nature~~as amended, and ~~substance~~ all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of ~~any filings, forms, statements, commitments, submissions and communications contemplated by~~ monopolization or ~~made in accordance with this Section 6.4, as well as the manner in which to contest~~ restraint of trade or ~~otherwise respond, by litigation~~ lessening of competition through merger or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Lawacquisition. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 1 contract

Samples: Merger Agreement (Bravo Holdco)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d)~~prior to the Effective Time, ~~Parent~~ each party shall use its reasonable best efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, all things ~~reasonably~~ necessary, ~~proper~~ proper, or advisable under ~~this Agreement and~~ applicable ~~Law~~ Laws to consummate ~~and make effective~~ the Offer, the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, Contemplated Transactions as promptly as practicable and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to supply as promptly as practicable any information and ~~advisable~~documentary material that may be requested by a Governmental Body pursuant to any Antitrust Law. The parties also shall consult and cooperate with one another, ~~prepare~~ and ~~submit~~ 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 such party 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 Body relating to any Antitrust Laws, (B) to give each other ~~filings~~an opportunity to participate in each of such meetings, ~~information updates~~ (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental 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 Body regarding any Antitrust Laws and (F) to provide each other ~~presentations required~~ with copies of all written communications to or from any Governmental 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, if appropriate. Notwithstanding the foregoing, Parent shall have the right to direct, devise and implement the strategy for obtaining any ~~other regulatory approval~~necessary approval of, ~~exemption~~for responding to any request from, ~~change~~ inquiry or investigation by (including directing the timing, nature and substance of ~~ownership approval~~all such responses), ~~or other authorization or consent from~~and shall have the right to lead all meetings and communications (including any negotiations) with, any Governmental ~~Entity or third~~ Body that has authority to enforce any Antitrust Law. Each party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with the Merger or any of the transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing. (b) Subject to Sections 6.4(d) and 6.4(e), each of Parent, on the one hand, and the Company, on the other hand, shall (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 and/or its counsel 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 Entity, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, and (iii) permit the other Party and/or its counsel to review any substantive communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Entity or, in connection with any proceeding by a private party, with any other person, and to the extent not prohibited by the DOJ, the FTC or such other Governmental Entity or other person, give the other Party and/or its counsel the opportunity to attend and participate in any substantive meeting, discussion or teleconference. Parent and the Company may, as each deems advisable and necessary, reasonably designate any ~~competitively sensitive material provided~~ such disclosures or provision of copies by one party to the other party under this ~~Section 6.4(b)~~ Agreement as “~~Antitrust Counsel Only Material~~outside counsel/in-house counsel only.” Such designated materials and the information contained therein shall be given only to the outside ~~antitrust~~ legal counsel and in-house counsel of the recipient and ~~will~~ shall not be disclosed by such outside counsel and in-house counsel to ~~employees~~employees (other than in-house counsel), officers or directors of the ~~recipient~~ 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; it being understood that materials provided pursuant to this Agreement may be redacted (i) as necessary to comply with contractual obligations and (ii) as necessary to protect privileged attorney-client communications or attorney work product. (b) Parent shall, and shall cause each of its Subsidiaries and Affiliates to, use its reasonable best efforts to obtain any consents, clearances, or 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 promptly complying with any requests for additional information (including any second request) by any Governmental Body. ~~Each of~~ Furthermore, both Parent and the Company shall ~~notify~~ 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 ~~other reasonably promptly upon~~ Contemplated Transactions. Parent shall pay all filing fees incurred by the ~~receipt of (i) any material communication from any official of any Governmental Entity~~ parties in connection with any ~~filing made pursuant~~ filings which may be required by such party to ~~this Agreement, (ii) knowledge~~ obtain clearance under any Antitrust Law for the consummation of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (Offer and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary ~~contained~~ in this Section ~~6.4, materials provided pursuant to this Section 6.4(b~~6.6(b) ~~may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by~~ or otherwise in this Agreement, ~~(y)~~ neither Parent nor any of its Affiliates shall have any obligation to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns. (c) Subject to Sections 6.4(d), in the event that any Action is commenced or threatened by a Governmental Entity or other persons challenging the Merger or the other transactions contemplated by this Agreement under Antitrust Law, (i) each of Parent and the Company shall reasonably cooperate with each other and (ii) Parent shall use its reasonable best efforts to contest, resist or resolve any such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) proposeoffer, negotiate, commit ~~to and~~ to, or effect, by consent decree, hold separate ~~orders~~ order, or otherwise, the sale, ~~divesture~~divestiture, ~~disposition~~license, or ~~license~~ other disposition of any or all of the capital stock, assets, ~~operations~~equity holdings, ~~properties~~rights, products, ~~rights~~or businesses, ~~licenses, services~~ or ~~businesses~~ any other restrictions on the activities of Parent or any of its ~~subsidiaries or~~ Subsidiaries (including the Surviving Corporation). In addition, the Company ~~or its subsidiaries, or any interest therein, and (ii) otherwise take~~ shall not offer or commit to take any of such actions without Parent’s prior written consent, which includes taking or committing to take actions that ~~would~~ limit ~~Parent’s~~ Parent or any of its ~~subsidiaries’ or~~ Subsidiaries (including the ~~Company’s or its subsidiaries’~~ Surviving Corporation), as applicable, freedom of action with respect to, or ~~its or~~ their ability to ~~retain~~ retain, any ~~assets, operations, properties, products, rights, licenses, services,~~ of the businesses, ~~of Parent or its subsidiaries or the Company or its subsidiaries~~employees, or ~~any interest therein; provided, that~~ assets of the Company. Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, require the Company to, and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be ~~obligated to~~ required to, take any action with respect to any consent decree, hold separate order or other applicable Law that binds the Company ~~and its subsidiaries~~ prior to the ~~effectiveness~~ Effective Time. Neither Parent nor the Company shall enter any agreement with a Governmental Body not to consummate or to delay consummation of ~~which is not conditioned on~~ the ~~Closing occurring~~Contemplated Transactions without the prior written consent of the other party. (ec) ~~Notwithstanding anything in this Agreement~~ Prior to the ~~contrary~~Acceptance Time, ~~Parent~~ each party shall ~~control the strategy for obtaining all~~ use commercially reasonable efforts to obtain any consents, approvals, or waivers ~~that~~ of third parties with respect to any Contracts to which it is a party as may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, necessary for the consummation of the ~~Merger and~~ Contemplated Transactions or required by the ~~other transactions contemplated by this Agreement; provided~~terms of any Contract as a result of the execution, ~~that Parent shall give the Company the opportunity to participate in such discussions~~performance, ~~negotiations~~ or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the ~~Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing~~Contemplated Transactions; provided that, in no event will the Company ~~will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may~~ be required ~~under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent~~ to ~~be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them~~ pay, prior to the ~~Closing~~ 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 transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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 ParentContract.

Appears in 1 contract

Samples: Merger Agreement (Sigilon Therapeutics, Inc.)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d), Parent shall~~ each party will use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement~~ applicable laws and ~~applicable Law~~ regulations to consummate ~~and make effective~~ the Merger and the other transactions contemplated by this Agreement. Each Party agrees to, as promptly as reasonably practicable and advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to, Agreement as promptly as practicable and ~~advisable~~no party hereto shall take or cause to be taken any action which would reasonably be expected to prevent, ~~prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval,~~ impede or ~~other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection with~~ delay the ~~Merger or any~~ consummation of the ~~transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing~~Merger. (b) ~~Subject to Sections 6.4(d)~~ Each of Parent and ~~6.4(e), each of Parent~~Merger Sub, on the one hand, and the Company, on the other hand, ~~shall~~ shall, in connection with the efforts referenced in Section 6.7(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under Antitrust Law, use commercially reasonable 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 proceeding initiated by a private party, ; (ii) keep the other ~~Party and/or its counsel~~ party reasonably ~~informed~~ informed, including by providing the other party with a copy, of any communication received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, ; and (iii) permit the other ~~Party and/or its counsel~~ party to review in advance any ~~substantive~~ communication planned to be given by it to, and consult with each other in advance of any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any ~~such~~ other U.S. or foreign Governmental Entity or, in connection with any proceeding by a private party, with any other ~~person~~Person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental Entity or other ~~person~~Person, give the other ~~Party and/or~~ party or its ~~counsel~~ representatives the opportunity to attend and participate in ~~any substantive meeting~~such meetings and conferences. Notwithstanding the foregoing, ~~discussion or teleconference. Parent and~~ the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section ~~6.4(b~~6.7(b) as “Antitrust Counsel Only Material.” “. Such materials and the information contained therein shall be given only to the outside ~~antitrust~~ counsel regarding Antitrust Law of the recipient and will not be disclosed by ~~such~~ outside counsel to employees, ~~officers~~ officers, directors or ~~directors~~ consultants of the recipient or any of its affiliates unless express permission is obtained in advance from the source of the materials (the Company or Parent ~~or the Company,~~ as the case may be) or its legal counsel. Each of ~~Parent and~~ the Company and Parent shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required cause their respective outside counsel regarding Antitrust Law to comply with ~~applicable Law applicable to the Merger~~this Section 6.7(b). Notwithstanding anything to the contrary ~~contained~~ in this Section ~~6.4~~6.7(b), materials provided ~~pursuant~~ to ~~this Section 6.4(b)~~ the other party or its counsel may be redacted to ~~(x)~~ remove references concerning the valuation of the Company and privileged communications. For purposes of this Agreement, “Antitrust Law“ means the Sxxxxxx Antitrust Act of 1890, as amended, the Cxxxxxx Act of 1914, as amended, the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, (iii) , the Federal Trade Commission Act, as amended, Foreign Antitrust and Investment Laws, 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. (c) In furtherance and not in limitation of the covenants of the parties contained in Section 6.7(a) and Section 6.7(b), 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 FTC, the DOJ or any other U.S. or foreign Governmental Entity or any private party 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 shall use commercially reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement~~, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns~~. (cd) Subject to ~~Sections 6.4(d~~the limitations set forth in Section 6.7(c), in the event that any ~~Action~~ administrative or judicial investigation, suit, action or other proceeding is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental Entity or ~~other persons~~ private party challenging the Merger or ~~the~~ any other ~~transactions~~ transaction contemplated by this ~~Agreement under Antitrust Law~~Agreement, ~~(i)~~ or any other agreement contemplated hereby, or that otherwise would reasonably be expected to prevent, impede or delay the Merger, or any such transaction or the satisfaction of any condition set forth in Exhibit A or ARTICLE 7, each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate in good faith with each other and ~~(ii) Parent shall~~ use its respective commercially reasonable ~~best~~ efforts to ~~contest,~~ contest and resist ~~or resolve~~ any such ~~Action~~ action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other ~~Order~~order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 1 contract

Samples: Merger Agreement (Ophthalmic Imaging Systems)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d), Parent shall~~ each Party will cooperate with each other Party and use ~~its~~ (and cause their respective Subsidiaries to use) their reasonable best efforts to take, or cause to be taken, Table of Contents all actions and ~~to use its reasonable best efforts~~ to do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable under ~~this Agreement and~~ applicable Law to consummate ~~and make effective~~ the ~~Merger~~ Merger, the Charter Amendment and the ~~other~~ transactions contemplated by this ~~Agreement~~Agreement as soon as reasonably practicable. ~~Each~~ In furtherance and not in limitation of the foregoing, each Party hereto agrees to(i) to make, if required, appropriate filings under any Antitrust Law as promptly as reasonably ~~practicable and advisable~~practicable, and ~~in any event no later than fifteen~~ (15ii) ~~Business Days after the date of this Agreement~~to reasonably promptly provide to each and every federal, ~~make appropriate filings of Notification and Report Forms pursuant to the HSR Act. Each Party will cooperate with the other Party and use its respective reasonable best efforts to~~state, as promptly as practicable and advisable, prepare and submit all other filings, information updates and other presentations required for any other regulatory approval, exemption, change of ownership approval, local or ~~other authorization~~ foreign court or ~~consent from, any~~ Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Law (“Government Antitrust Entity”) all non-privileged information and documents requested by any Government Antitrust Entity or ~~third party in each case~~ that are ~~set forth on Schedule 6.4(a)~~ necessary, proper or ~~are otherwise required in connection with~~ advisable to permit the ~~Merger or any~~ consummation of the transactions contemplated by this Agreement~~, and to assist and cooperate with the other Party in connection with the foregoing~~. (b) ~~Subject to Sections 6.4(d)~~ Each of Parent and ~~6.4(e), each of Parent~~Merger Sub, on the one hand, and the Company, on the other hand, ~~shall~~ shall, in connection with the efforts referenced in Section 5.6(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law, use its reasonable best efforts to (i) reasonably cooperate in all respects with each other in connection with any filing or submission to and in connection with any investigation or other ~~inquiry, including any proceeding initiated~~ inquiry by a ~~private party~~Governmental Entity, (ii) keep the other Party ~~and/or its counsel~~ reasonably informed of the status of any notice, approval, investigation or inquiry under Antitrust Law, or any other material investigation or other inquiry by a Governmental Entity, relating to the completion of the Merger or the Charter Amendment, including promptly forwarding to the other Party any notices or any other communication received by any of such ~~Party~~ Persons to it or its Subsidiary (or the Representatives of either of them) from, or given by such Party ~~to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or~~ to any ~~other~~ U.S. or foreign Governmental Entity~~, and of any communication received or given in connection with any proceeding by a private party~~, in each case regarding any of the transactions contemplated ~~hereby~~hereby and, ~~and~~ (iii) permit the other Party ~~and/or its counsel~~ a reasonable opportunity to review and comment on any substantive written communication to be given ~~by it to,~~ to a Governmental Entity in connection with the matters that are the subject of this Agreement and ~~consult with each~~ to have its comments considered in good faith. Neither the Company nor Parent shall permit any of its officers or any other Representatives to participate in ~~advance of~~ any meeting or ~~conference with, the DOJ, the FTC or~~ substantive telephone discussion with any ~~such other~~ Governmental Entity orin respect of any filings, ~~in connection~~ investigation or other inquiry with ~~any proceeding~~ respect to the Merger or the Charter Amendment or transactions contemplated by ~~a private party, with any other person, and~~ this Agreement unless to the extent ~~not prohibited by the DOJ, the FTC or such other Governmental Entity or other person, give~~ practicable (i) it consults with the other Party ~~and/or its counsel~~ in advance and (ii) to the extent permitted by such Governmental Entity, gives the other Party the opportunity to attend and participate in ~~any~~ such meeting or substantive ~~meeting~~telephone discussion. Notwithstanding the foregoing, ~~discussion or teleconference. Parent and~~ 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 ~~6.4(b~~5.6(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside ~~antitrust~~ counsel of the recipient dealing with Antitrust Law matters, and will not be disclosed by such outside counsel to employees, ~~officers~~ officers, directors or ~~directors~~ consultants of the recipient or any of its Affiliates unless express permission is obtained in advance from the source of the materials (~~Parent~~ the Company or ~~the Company~~Parent, as the case may be) or its legal counsel. Each of ~~Parent and~~ the Company and Parent shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required cause its respective counsel regarding Antitrust Law to comply with ~~applicable Law applicable to the Merger~~this Section 5.6(b). Notwithstanding anything to the contrary ~~contained~~ in this Section ~~6.4~~5.6(b), materials provided ~~pursuant~~ to ~~this Section 6.4(b)~~ the other Party or its counsel may be redacted to ~~(x)~~ remove references concerning the valuation of the Company and privileged communications. (c) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the other undertakings pursuant to Section 5.6(a) and Section 5.6(b), but subject to Section 5.6(d), each of the Company (in the case of Section 5.6(c)(ii) set forth below) and Parent (in all cases set forth below) agree to take or cause to be taken the following actions: (i) the prompt use of its reasonable best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment under Antitrust Laws that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, ~~(y)~~ including the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person under Antitrust Laws, including any Governmental Entity, seeking to ~~the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concerns.~~delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions; and (cii) ~~Subject~~ the prompt use of its reasonable best efforts to ~~Sections 6.4(d)~~take, in the event that any ~~Action~~ permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree under Antitrust Laws is ~~commenced~~ entered, issued or ~~threatened by a Governmental Entity~~ enacted, or ~~other persons challenging~~ becomes reasonably foreseeable to be entered, issued or enacted, in any proceeding, Table of Contents review or inquiry of any kind that would make consummation of the ~~Merger or the other~~ transactions contemplated by this Agreement ~~under Antitrust Law~~in accordance with the terms of this Agreement unlawful or that would delay, ~~(i) each of Parent and the Company shall reasonably cooperate with each other and (ii) Parent shall use its reasonable best efforts to contest~~restrain, ~~resist~~ prevent, enjoin or resolve any such Action 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 otherwise prohibit consummation of the ~~Merger or the other~~ transactions contemplated by this ~~Agreement~~ Agreement, any and all steps (including the appeal thereof, the posting of a bond or the taking of the steps contemplated by this clause (ii) of paragraph (c)) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination, decree or enactment so as to permit such consummation ~~no later than the End Date (~~on a schedule as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions close as possible to that contemplated by this Agreement. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, neither Parent nor any of its Subsidiaries shall ~~control~~ be obligated, in connection with any Antitrust Law (including in connection with any Action arising thereunder) or by any Government Antitrust Entity, to (i) proffer to, agree to or become subject to any order, judgment or decree to, sell, license or dispose of or hold separate, before or after the ~~strategy for obtaining all consents~~Closing, ~~approvals~~any assets, businesses, product lines or interest in any assets or businesses of Parent or any of its Affiliates or the Company or any of its Subsidiaries, or ~~waivers that may be sought from~~ to consent to any ~~Governmental Entity pursuant~~ sale, license, or disposition, or agreement to ~~this Section 6.4~~sell, ~~including~~ license or dispose, by ~~directing~~ the ~~timing~~Company or any of its Subsidiaries, ~~nature, and substance~~ of any ~~filings~~of their assets or businesses or product lines, ~~forms~~(ii) proffer to, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections agree to, or ~~proceedings~~ become subject to any order, judgment or ~~other actions challenging~~decree to make or accept, any changes, modifications, limitations or restrictions in the ~~consummation~~ operations of any assets or businesses of Parent or the Company or any of their respective Subsidiaries, or (iii) proffer to or agree to any new concession, accommodation or liability; provided that, Parent shall be required to consent to the sale, license, disposition, holding separate of, or an agreement to sell, license, dispose of or hold separate, assets of the ~~Merger~~ Company and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s Subsidiaries or ~~its subsidiaries’~~ any changes, modifications, limitations or restrictions in the operations of any assets or businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of ~~its subsidiaries~~ the Company’s Subsidiaries or any concession, accommodation or liability, solely with respect to the assets, businesses or product lines (~~each~~or interests therein), ~~a “Company Divestiture Action”); provided~~or operations, ~~however, that the consummation~~ of the ~~transactions provided~~ Company and its Subsidiaries (but not, for ~~in any such agreement for a~~ the avoidance of doubt, Parent or its Subsidiaries (other than the Company ~~Divestiture Action will be conditioned upon the Closing or satisfaction or (~~and its Subsidiaries)), to the extent ~~permitted~~ that (A) such sale, license, disposition, holding separate, change, modification, limitation, restriction, concession, accommodation or other matter or agreement to sell, license, dispose of, hold separate, modify, limit, restrict, make a concession or accommodation or incur a liability, or other matter, is required by ~~applicable Law~~a Government Antitrust Entity in order to obtain any consent or approval referred to in Section 6.1(b) ~~waiver of all~~ and (B) such sale, license, disposition, holding separate or agreement to sell, license, dispose of, hold separate, change, modification, limitation, restriction, concession, accommodation, liability or other matter (or agreement to do any of the ~~conditions~~ foregoing), taken together with all other such sales, licenses, dispositions, holdings separate, changes, modifications, limitations, restrictions, concessions, accommodations, liabilities or other matters (and agreements to ~~Closing in~~ do any of the foregoing) Parent and its Subsidiaries have agreed or become subject to pursuant to this proviso, would not materially diminish the value of the Acquired Companies taken as a ~~case where~~ whole. Neither the ~~Closing will occur immediately following consummation of such~~ Company ~~Divestiture Action. The Company shall not, and shall not permit~~ nor any of its ~~Representatives~~ Subsidiaries shall proffer to, ~~make any offer, acceptance or counter-offer~~ agree to or ~~otherwise engage in negotiations or discussions with any Governmental Entity with respect~~ become subject to any ~~proposed settlement~~of the items set forth in clauses (i), ~~consent~~(ii), ~~decree~~and (iii) of the preceding sentence without the prior written consent of Parent, ~~commitment~~ and none of the Company nor any of its Subsidiaries shall be required to agree to any of the items set forth in clauses (i), (ii), and (iii) of the preceding sentence (or ~~remedy or~~contemplated by the proviso thereof) that is not conditioned on the occurrence of the Effective Time. (e) For purposes of this Agreement, in “Antitrust Law” means the ~~event~~ Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of ~~litigation~~1976, ~~discovery~~as amended, ~~admissibility~~ 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 ~~evidence, timing~~ monopolization or ~~scheduling, except as specifically requested by~~ restraint of trade or ~~agreed with Parent~~lessening of competition through merger or acquisition.

Appears in 1 contract

Samples: Merger Agreement (Sevcon, Inc.)

Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, ~~including Section 6.4(d), Parent~~ each party shall (and shall cause its Subsidiaries to) use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to ~~use its reasonable best efforts to~~ do, or cause to be done, all things ~~reasonably~~ necessary, proper or advisable ~~under this Agreement and applicable Law~~ to consummate ~~and make effective~~ the Merger and the other ~~transactions contemplated by this Agreement~~Transactions, including preparing and filing as soon as reasonably practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the Merger and the other Transactions. ~~Each Party~~ In furtherance and not in limitation of the foregoing, each party agrees to(i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as soon as reasonably practicable after the date hereof, (ii) to supply as promptly as reasonably practicable any additional information and ~~advisable, and in any event no later than fifteen (15) Business Days after the date of this Agreement, make appropriate filings of Notification and Report Forms~~ documentary material that may be requested pursuant to the HSR ~~Act. Each Party will cooperate with the other Party~~ Act and (iii) use ~~its respective~~ commercially reasonable ~~best~~ efforts ~~to, as promptly as practicable and advisable, prepare and submit~~ to take or cause to be taken all other ~~filings~~actions necessary, ~~information updates and other presentations required for any other regulatory approval, exemption, change~~ proper or advisable to cause the expiration or termination of ~~ownership approval, or other authorization or consent from, any Governmental Entity or third party in each case that are set forth on Schedule 6.4(a) or are otherwise required in connection~~ the applicable waiting periods with respect to the Merger ~~or any of~~ under the ~~transactions contemplated by this Agreement, and to assist and cooperate with the other Party in connection with the foregoing~~HSR Act. (b) ~~Subject to Sections 6.4(d)~~ Each of Parent and ~~6.4(e), each of Parent~~Merger Sub, on the one hand, and the Company, on the other hand, ~~shall~~ shall, in connection with the efforts referenced in Section 6.03(a), use its commercially reasonable efforts to (in each case to the extent practicable and permitted under applicable Law) (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~~ Action initiated by a private party, ; (ii) keep the other ~~Party and/or its counsel~~ party reasonably informed of the status of matters related to the Transactions, including furnishing the other with any ~~communication~~ written notices or other communications received by such ~~Party~~ party from, or given by such ~~Party~~ 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 ~~Entity,~~ Authority and of any communication received or given in connection with any ~~proceeding~~ Action by a private party, in each case regarding any of the ~~transactions contemplated hereby,~~ Transactions; and (iii) permit the other ~~Party and/or its counsel~~ party to review ~~any substantive communication given by it to,~~ and consult with each other in advance of any communication given by it to, or any meeting or conference with, the ~~DOJ~~FTC, the ~~FTC~~ DOJ or any ~~such~~ other Governmental ~~Entity~~ Authority or, in connection with any ~~proceeding~~ Action under Antitrust Law by a private party, with any other ~~person~~Person, and to the extent ~~not prohibited~~ permitted by the ~~DOJ~~FTC, the ~~FTC~~ DOJ or such other applicable Governmental ~~Entity~~ Authority or other ~~person~~Person, give the other ~~Party and/or its counsel~~ party the opportunity to attend and participate in ~~any substantive meeting, discussion or teleconference. Parent~~ such meetings and ~~the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.4(b) as “~~conferences in accordance with Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each of Parent and the Company shall notify the other reasonably promptly upon the receipt of (i) any material communication from any official of any Governmental Entity in connection with any filing made pursuant to this Agreement, (ii) knowledge of the commencement or threat of commencement of any suits, claims, actions, proceedings, arbitrations, mediations, consent decrees, audits or investigations (whether governmental, internal or otherwise) (“Actions”) by or before any Governmental Entity with respect to the Merger (and shall keep the other Party informed as to the status of any such Action or threat) and (iii) any request by any official of any Governmental Entity for any amendment or supplement to any filing made pursuant to this Agreement or any information required to comply with applicable Law applicable to the Merger. Notwithstanding anything to the contrary contained in this Section 6.4, materials provided pursuant to this Section 6.4(b) may be redacted to (x) remove references concerning the valuation of the Company and the transactions contemplated by this Agreement, (y) to the extent necessary to comply with contractual arrangements and (z) to the extent necessary to address reasonable privilege and confidentiality concernsLaw. (c) ~~Subject~~ In addition to and not in limitation of the covenants of the parties contained in Sections ~~6.4(d~~6.03(a) and (b), each party hereto shall use its best efforts (in each case to the extent permitted under applicable Law) to resolve such objections, if any, as may be asserted with respect to the Transactions under any Antitrust Law, including agreeing to take or cause its Subsidiaries to take any action or agree to take any action or consent to the taking of any action not inconsistent with this Section 6.03(c). Notwithstanding the foregoing, nothing in this Section 6.03 shall require any party hereto to take any action which (i) requires any party hereto to sell, hold separate or otherwise dispose of any business or assets, or conduct its (or its Subsidiaries’) business in any specified manner, (ii) is reasonably likely to have a material adverse effect on the condition (financial or otherwise), business, assets, liabilities or results of operations of either Parent (or any of its Subsidiaries) or the Company, taken individually or in the aggregate, or (iii) is not conditioned on the consummation of the Merger. (d) In the event that any administrative or judicial Action is ~~commenced~~ instituted (or threatened to be instituted) by a Governmental ~~Entity~~ Authority or ~~other persons~~ private party challenging the Merger or the other ~~transactions contemplated by this Agreement under Antitrust Law~~Transactions, ~~(i)~~ each of ~~Parent~~ Parent, Merger Sub and the Company shall ~~reasonably~~ cooperate with each other and ~~(ii) Parent shall~~ use its commercially reasonable ~~best~~ efforts (in each case to ~~contest,~~ the extent practicable and permitted under applicable Law) to contest and resist ~~or resolve~~ any such ~~Action~~ action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other ~~Order~~order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement so as to permit such consummation no later than the End Date (as such End Date may be extended in accordance with Section 8.1(c) hereof), and oppose any such Actions, whether judicial or administrative, against it in connection with the Merger or the other transactions contemplated by this AgreementTransactions. (d) In furtherance of the foregoing, Parent shall, and shall cause its subsidiaries to, (i) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, operations, properties, products, rights, licenses, services or businesses of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein, and (ii) otherwise take or commit to take any actions that would limit Parent’s or its subsidiaries’ or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, operations, properties, products, rights, licenses, services, businesses, of Parent or its subsidiaries or the Company or its subsidiaries, or any interest therein; provided, that Parent shall not be required or obligated to take or agree to take any of the foregoing actions if such actions would result in or account for, either individually or in the aggregate, a reduction of revenue (without duplication and net of intercompany revenues) in excess of $200,000,000 (for any rolling 12-month period ending the last full month prior to any date between the date hereof and the Closing Date) to Parent, the Company and their respective subsidiaries (taken as a whole, after giving effect to the Merger) if such actions had been taken at the beginning of any such rolling 12-month period; provided, further, that any such actions are conditioned upon the consummation of the Merger and the transactions contemplated by this Agreement and that the Company shall not be obligated to take any action with respect to the Company and its subsidiaries the effectiveness of which is not conditioned on the Closing occurring. (e) Notwithstanding anything in this Agreement to the contrary, Parent shall control the strategy for obtaining all consents, approvals, or waivers that may be sought from any Governmental Entity pursuant to this Section 6.4, including by directing the timing, nature, and substance of any filings, forms, statements, commitments, submissions and communications contemplated by or made in accordance with this Section 6.4, as well as the manner in which to contest or otherwise respond, by litigation or otherwise, to objections to, or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall give the Company the opportunity to participate in such discussions, negotiations or other proceedings to the extent not prohibited by applicable Law. (f) At Parent’s request, the Company agrees to take all reasonable actions Parent requests and to cooperate with Parent in connection with obtaining any actions, consents, undertakings, approvals or waivers by or from any Governmental Entity for or in connection with, and reasonably cooperate with Parent in litigating or otherwise contesting any objections to or proceedings or other actions challenging, the consummation of the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and will cause its subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence and granting any approvals that may be required under the Confidentiality Agreement) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be subject to any such divestitures and (ii) enter into one or more agreements as requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that would limit the Company’s or its subsidiaries’ freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses or assets of the Company or any of its subsidiaries (each, a “Company Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Company Divestiture Action will be conditioned upon the Closing or satisfaction or (to the extent permitted by applicable Law) waiver of all of the conditions to Closing in a case where the Closing will occur immediately following consummation of such Company Divestiture Action. The Company shall not, and shall not permit any of its Representatives to, make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity 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.

Appears in 1 contract

Samples: Merger Agreement (Energysouth Inc)

Common use of Further Action; Efforts Clause in Contracts