Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Transactions, including using its reasonable best efforts to accomplish the following: (i) the satisfaction of the conditions precedent set forth in Article VIII, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closing.
Appears in 3 contracts
Samples: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Each party hereto agrees to shall use its reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the Transactions, including using its reasonable best efforts to accomplish obtain, or cause to be obtained, all permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials and parties to contracts with the following: (i) Company and its Subsidiaries that may be or become necessary for the satisfaction performance of the conditions precedent set forth obligations of such party hereto pursuant to this Agreement and the consummation of the Transactions and will cooperate fully with the other parties in Article VIIIpromptly seeking to obtain all such permits, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesapprovals, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letterauthorizations, qualifications and Orders; provided that, notwithstanding for the foregoingavoidance of doubt, in no event shall the Company or any of its Subsidiaries action permitted to be obligated taken pursuant to bear any expense or pay any fee (other than the payment of nominal administrativeSection 6.01, processing or similar fees or chargesSection 7.02(c) or grant Section 7.03 shall be prohibited by this sentence.
(b) Each of the parties hereto agrees to cooperate and use its reasonable best efforts to vigorously contest and resist any concession in connection with obtaining the consentsAction, approvals including any administrative or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents fromjudicial Action, and the giving to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits consummation of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including by vigorously pursuing all available avenues of administrative and judicial appeal.
(c) At the Merger, (v) the taking of all reasonable steps as may be necessary to avoid Company Shareholders’ Meeting and any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation other meeting of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation shareholders of the MergerCompany called to seek the Company Shareholder Approval or in any other circumstances upon which a vote, including seeking to have any stay or temporary restraining order entered by any court consent or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include approval (and including by written consent) with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicablethis Agreement, the UK Merger or any other Transaction contemplated hereunder is sought, Parent shall, and Germany shall cause the Buyer Group Parties to, vote their beneficially owned Shares in favor of granting the Company Shareholder Approval.
(specifically, for (1d) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and For the avoidance of an Action doubt, except as set forth in the US seeking to prohibit consummation Section 7.09(c), nothing in this Section 7.09 shall in any way limit any rights of the MergerParent, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing Merger Sub or any other provision of this Agreement to the contrary, in no event shall Parent their respective Affiliates as holders of Shares or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required ADSs or require any of them to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose limitation of any portion of its or their respective businesses or assetssuch rights, including after giving effect their right to the Transactions, vote any or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company all such Shares and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described ADSs in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closingtheir sole discretion.
Appears in 2 contracts
Samples: Merger Agreement (China Hydroelectric Corp), Merger Agreement (NewQuest Asia Fund I, L.P.)
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Each party hereto agrees to shall use its reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the Transactions, including using its reasonable best efforts to accomplish obtain, or cause to be obtained, all permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials and parties to Contracts with the following: Company and its Subsidiaries that may be or become necessary for the performance of the obligations of such party hereto pursuant to this Agreement and the consummation of the Transactions and will cooperate fully with the other parties in promptly seeking to obtain all such permits, consents, approvals, authorizations, qualifications and Orders; provided that, for the avoidance of doubt, no action permitted to be taken pursuant to Section 6.01 or Section 7.03 shall be prohibited by this sentence.
(b) Upon the terms and subject to the conditions of this Agreement, each party hereto agrees to (i) make an appropriate filing, if necessary, pursuant to the satisfaction PRC Anti-Monopoly Law, the Japanese Act on Prohibition of Private Monopolization and Maintenance of Fair Trade, the conditions precedent set forth in Article VIIIHSR Act (if required) with respect to the Transactions promptly following the date of this Agreement, (ii) supply as promptly as practicable to the obtaining of all necessary consents, approvals or waivers from third parties, including appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the contracts set forth PRC Anti-Monopoly Law, the Japanese Act on Section 4.04 Prohibition of Private Monopolization and Maintenance of Fair Trade, the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee HSR Act (other than the payment of nominal administrative, processing or similar fees or chargesif required) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), and (iii) use its reasonable best efforts to obtain approval, consent, clearance or expiration of waiting periods from appropriate Governmental Authorities under the obtaining PRC Anti-Monopoly Law, the Japanese Act on Prohibition of all necessary actions or nonactions Private Monopolization and consents fromMaintenance of Fair Trade, and the giving HSR Act (if required).
(c) Each party hereto shall promptly notify the others of any necessary notices to, material communication it receives from any Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings Authority relating to any filing or submissions under the PRC Anti-Monopoly Law, the Japanese Act on Prohibition of Private Monopolization and Maintenance of Fair Trade, the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen Act (15if required) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws fair trade Laws. Each party agrees to provide promptly to the other parties all information and assistance reasonably necessary in connection with preparing and submitting such filings and obtaining the relevant approvals, consents or expiration of any jurisdiction waiting periods in relation to such filings.
(collectivelyd) Each of Parent, “Antitrust Midco and Merger Sub, on the one hand, and the Company, on the other hand shall, subject to applicable Laws”), if any, (ivi) permit counsel for the taking other party to review in advance and consider in good faith the views of the other party in connection with any proposed written communications with Governmental Authorities concerning the Transactions under the PRC Anti-Monopoly Law, the Japanese Act on Prohibition of Private Monopolization and Maintenance of Fair Trade, the HSR Act (if required) or other applicable antitrust, competition or fair trade Laws, and (ii) provide counsel for the other party with copies of all reasonable steps filings made by such party to, and give the other party the opportunity to provide attend and participate at any supplemental information requested by meeting with, any antitrust, competition, or fair trade Governmental Authority and all correspondence between such party (and its advisors) and any antitrust, competition, or fair trade Governmental Authority, and any other information supplied by such party and such party’s Affiliates to or received from any antitrust, competition, or fair trade Governmental Authority in connection with the proposed Transactions, provided, however, that such materials may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, and (C) as necessary to address reasonable privilege and confidentiality concerns.
(e) Each party hereto may, as each deems advisable and necessary, reasonably designate any competitively sensitive or any confidential business material provided to the other under this Section 7.08 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and shall 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 or its legal counsel.
(f) Each of the parties hereto agrees to cooperate and use its reasonable best efforts to vigorously contest and resist any Action, including participating any administrative or judicial Action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that is in meetings with officials effect and that restricts, prevents or prohibits consummation of such entity in the course of its review of this Agreement or the Transactions, including by vigorously pursuing all available avenues of administrative and judicial appeal.
(g) On or before the MergerClosing, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging Midco shall duly approve this Agreement or in its capacity as sole shareholder of Merger Sub in accordance with applicable Law and the consummation memorandum and articles of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with association of Merger Sub and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable deliver to the Mergers under the HSR Act to have been terminated Company evidence of its vote or expired and the avoidance of an Action action by written consent so approving this Agreement.
(h) Notwithstanding anything in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent will any party hereto or its Subsidiaries any of their Affiliates (including First Merger Sub and Second Merger Sub andincluding, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its SubsidiariesCompany) be required obligated to propose or agree to or accept (A) any commitment, undertaking or Order condition, to enter into any consent decree, to sell, divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of its business businesses, services or operations pursuant assets or to this pay any material amount (other than the payment of filing fees and fees of counsel).
(i) Notwithstanding anything to the contrary, all obligations of the Company, Parent, Midco and Merger Sub relating to the Financing shall be governed exclusively by Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closing7.15 and Section 7.16.
Appears in 2 contracts
Samples: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to party will use its reasonable best efforts to take, or cause to be taken, all actions that are and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Merger and make effective the Transactionsother transactions contemplated by this Agreement, including using its reasonable best efforts preparing and filing as promptly as practicable all documentation to accomplish effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the following: Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees (i) the satisfaction to make an appropriate filing of the conditions precedent set forth in Article VIII, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, including a Notification and Report Form pursuant to the contracts set forth on Section 4.04 of HSR Act with respect to the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made transactions contemplated hereby as soon promptly as reasonably practicable following after the date hereof and but in any event no later than fifteen (15) Business Days following after the date hereof, (ii) to make all necessary notifications, registrations or are required filings pursuant to any applicable Antitrust Law (other than the HSR Act) with respect to the transactions contemplated hereby as promptly as practicable after the date hereof but in any event no later than thirty Business Days after the date hereof, (iii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or advisable under any other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, Law and (iv) to use its reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to cause the taking expiration or termination of all reasonable steps the applicable waiting periods with respect to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation approval of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and any other applicable Antitrust Laws.
(b) Each of Parent and Merger Sub, on the one hand, and the avoidance of an Action Company, on the other hand, shall, in connection with the US seeking efforts referenced in Section 5.03(a) to prohibit consummation of obtain all requisite approvals and authorizations for the Merger, and (2) any antitrust clearance required to be obtained in transactions contemplated by this Agreement under the UK and Germany (if applicable)). Notwithstanding the foregoing HSR Act or any other provision applicable Antitrust Law, use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party reasonably informed of this Agreement the status of matters related to the contrarytransactions contemplated by this Agreement, in no event shall Parent including furnishing the other with any written notices or its Subsidiaries (including First Merger Sub and Second Merger Sub andother communications received by such party from, after the Effective Timeor given by such party to, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closing.Federal Trade
Appears in 2 contracts
Samples: Merger Agreement (Ingersoll Rand Co LTD), Merger Agreement (Trane Inc.)
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to Party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each Party agrees (i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Law with respect to the transactions contemplated hereby as promptly as practicable after the date hereof, (ii) to supply as promptly as reasonably practicable any additional information and documentary material that are may be requested pursuant to the HSR Act or any other applicable Antitrust Law and (iii) use its reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to consummate cause the expiration or termination of the applicable waiting periods with respect to the approval of the Merger or the Offer, as applicable, under the HSR Act and make effective any other applicable Antitrust Laws.
(b) Each of Parent and Merger Sub, on the Transactionsone hand, including using and the Company, on the other hand, shall, in connection with the efforts referenced in Section 6.03(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other applicable Antitrust Law, use its reasonable best efforts to accomplish the following: (i) the satisfaction of the conditions precedent set forth cooperate in Article VIIIall 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 obtaining other Party reasonably informed of all necessary consents, approvals or waivers from third partiesthe status of matters related to the transactions contemplated by this Agreement, including pursuant to furnishing the contracts set forth on Section 4.04 other with any written notices or other communications received by such Party from, or given by such Party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Company Disclosure Letter; provided that, notwithstanding Department of Justice (the foregoing, in no event shall the Company “DOJ”) or any other U.S. or foreign Governmental Entity and of its Subsidiaries be obligated to bear any expense communication received or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession given in connection with obtaining any proceeding by a private party, in each case regarding any of the consents, approvals or waivers referred to in this clause (ii), transactions contemplated hereby; and (iii) permit the obtaining of all necessary actions or nonactions and consents fromother Party to review any communication given by it to, and the giving consult with each other in advance of any necessary notices tomeeting or conference with, the FTC, the DOJ or any other Governmental Authorities Entity or, in connection with any proceeding by a private party, with any other person, and third parties to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other Party the opportunity to attend and participate in such meetings and conferences in accordance with Antitrust Law. For purposes of this Agreement, (A) “Antitrust Law” means the making of all necessary registrationsSxxxxxx Act, declarations and filings under as amended, the Cxxxxxx Act, as amended, the HSR Act, which shall be made the Federal Trade Commission Act, as soon as reasonably practicable following the date hereof amended, Foreign Antitrust Laws and in any event no later than fifteen (15) Business Days following the date hereofall other federal, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”)state and foreign, if any, (iv) statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement purpose or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying monopolization or preventing the consummation restraint of the Merger and (vi) the defending trade or contesting lessening of any Actions challenging this Agreement competition through merger or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) acquisition and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closing.“Foreign
Appears in 1 contract
Samples: Merger Agreement (Cost Plus Inc/Ca/)
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreementhereof, each of the parties hereto agrees to shall use its reasonable best efforts (exercised diligently and in good faith) to take, or cause to be taken, all actions that are and to do, or cause to be done, all other things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the Transactionstransactions contemplated by this Agreement, including using its reasonable best efforts to accomplish the following: (i) the satisfaction of the obtain in a timely manner all necessary waivers, consents, authorizations and approvals and to effect all necessary registrations and filings, and otherwise to satisfy or cause to be satisfied all conditions precedent set forth in Article VIII, to its obligations under this Agreement.
(iib) the obtaining of all necessary consents, approvals or waivers from third parties, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or Notwithstanding any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event Buyer shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) not be required to agree to or accept (A) any commitment, undertaking or Order obligated to divest, abandon, license, dispose of, hold separate or otherwise dispose of take similar action with respect to any portion of its the business, assets or their respective businesses properties (tangible or assetsintangible) of Buyer, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted or the Company in connection with seeking to commit obtain or agree to obtaining any remedy waiver, consent, authorization or approval of any Person associated with the consummation of the transactions contemplated hereby or otherwise.
(including c) If, at any matter described in clauses (A) and (B) and time after the Closing Date, any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or further action is conditioned upon necessary or desirable to carry out the Closingpurposes of this Agreement or any Ancillary Agreements, each of the Sellers and the officers and directors of the Company and Buyer are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary or desirable action. -------------------------------------------------------------------------------- STOCK PURCHASE AGREEMENT - EXECUTION COPY PAGE 41 CCS TECHNOLOGY, INC.
Appears in 1 contract
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Each party hereto agrees to shall use its reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Transactions, including (i) using its reasonable best efforts to accomplish obtain, or cause to be obtained, all permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials and parties to contracts with the following: (i) Company and the satisfaction Subsidiaries that may be or become necessary for the performance of the conditions precedent set forth in Article VIIIobligations of such party hereto pursuant to this Agreement and the consummation of the Transactions, (ii) cooperating fully with the obtaining of other parties in promptly seeking to obtain all necessary such permits, consents, approvals, authorizations, qualifications and Orders, (iii) providing such other information to any Governmental Authority as such Governmental Authority may lawfully request in connection herewith, and (iv) using reasonable best efforts to obtain consents, approvals or waivers from third parties, including pursuant parties that are (A) necessary to consummate the contracts set forth on Section 4.04 of Transactions or (B) disclosed in the Company Disclosure LetterSchedule; provided that, notwithstanding the foregoing, in no event shall that neither the Company or nor any of its Subsidiaries be obligated to bear any expense or shall pay any fee (other than the payment of nominal administrative, processing consideration or similar fees make any agreements or charges) or grant any concession commitments in connection with obtaining the any such necessary consents, approvals or waivers referred without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned). Each party hereto agrees to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made make as soon promptly as reasonably practicable following after the date hereof of this Agreement its respective filings and in notifications, if any, under any event no later than fifteen (15) Business Days following the date hereofapplicable foreign, federal or are required or advisable under other applicable state antitrust, competition or pre-merger notification Laws fair trade Laws, and to supply as promptly as reasonably practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to such Laws. Each party will promptly notify the other of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) notice from any Person or Governmental Authority alleging that the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials consent of such entity Person is or may be required in the course of its review of this Agreement or connection with the Transactions, including the Merger, .
(vb) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance Notwithstanding anything in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall will Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub andbe obligated to take any action, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) including entering into any commitment, undertaking or Order to divestconsent decree, hold separate orders or otherwise dispose other arrangements, that (i) requires the divestiture of any portion material assets of its any of the Company, Parent or Merger Sub or any of their respective businesses or assets, including after giving effect to the TransactionsSubsidiaries, or (Bii) any limitation on the ability materially limits Parent’s freedom of Parent action with respect to, or its Subsidiaries ability to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purposeretain, the Company and its SubsidiariesSubsidiaries or any portion thereof or any of Parent’s or its Affiliates’ other assets or businesses, or (iii) in Parent’s reasonable judgment, would be expected to have a material adverse impact on any of its businesses, or the businesses to be acquired by it pursuant to this Agreement, either individually or in the aggregate. With regard to any Governmental Authority, neither the Company nor any of its Affiliates shall, without Parent’s written consent, which may be withheld in Parent’s sole discretion, discuss or commit to any divestiture transaction, or discuss or commit to alter their businesses, product lines or commercial practices in any way, or otherwise take or commit to take any action that limits Parent’s freedom of action with respect to, or its ability to retain any of the businesses, product lines or assets of, the Company or otherwise receive the full benefits of this Agreement.
(c) Subject to Section 7.08(b), each of the parties hereto agrees to cooperate and use reasonable best efforts (i) to contest and resist any Action, including any administrative or judicial Action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that would otherwise restrict, prevent, prohibit, impair or delay consummation of the Transactions, including by pursuing all available avenues of administrative and judicial appeal and (ii) to resolve any such Action, including any administrative or judicial Action, or objections by any Governmental Authority or other Person; provided that nothing in this Agreement shall require (or be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company require) Parent or any of its Subsidiaries be permitted Affiliates to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to the matters set forth in this Section 7.07(a7.08(c) unless that would, individually or in the effectiveness aggregate, reasonably be expected to have a material adverse effect on (x) the financial condition or result of such agreement operations of the Company and the Company Subsidiaries, taken as a whole, or (y) the anticipated economic benefit or value that Parent reasonably expects to be realized from the transactions contemplated by this Agreement. For the avoidance of doubt, Parent and its Affiliates shall not be required (and Parent shall not require the Company to, and the Company shall not be required to), take any action with respect to any order or any applicable Law which is not conditioned upon the Closingconsummation of the Merger. Parent shall be entitled to direct the defense of the Transactions in any antitrust investigation or litigation by, or negotiations with, any Governmental Authority or other Person relating to the Merger or regulatory filings under applicable Law, provided, that Parent shall in good faith consider all views and input provided by the Company.
(d) Each party shall promptly notify the others of any material communication it receives from any Governmental Authority relating to any filings, or submissions under any applicable foreign, federal or state antitrust, competition or fair trade Laws. The Company agrees to provide promptly to Parent and Merger Sub all necessary information and reasonable assistance as any Governmental Authority may from time to time require in connection with the obtaining of the relevant approvals, consents or expiration of waiting periods in relation to these filings. The Company shall promptly provide all reasonable assistance and cooperation to allow Parent and Merger Sub to prepare and submit any filings, or submissions under any applicable foreign, federal or state antitrust, competition or fair trade Laws, including providing to Parent and Merger Sub any information that Parent and Merger Sub may from time to time require for the purpose of any filing, notification, application or request for further information made in respect of any such filing. Notwithstanding anything to the contrary contained in this Agreement, Parent, after prior good faith consultation with the Company, shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust, competition or investment review clearances, and shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining any necessary antitrust, competition or investment review clearances. Neither Parent nor Company shall agree to participate in any meeting, telephone call or discussion with any Governmental Authority in respect of any filings, investigation (including any settlement of an investigation), or other inquiry related to the Transactions unless it consults with the other party in advance and, unless prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate at such meeting, telephone call or discussion.
Appears in 1 contract
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Each party hereto agrees to shall use its reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Transactions, including (i) using its reasonable best efforts to accomplish obtain, or cause to be obtained, all permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials that may be or become necessary for the following: (i) the satisfaction performance of the conditions precedent set forth in Article VIIIobligations of such party hereto pursuant to this Agreement and the consummation of the Transactions, (ii) cooperating fully with the obtaining of other parties in promptly seeking to obtain all necessary such permits, consents, approvals, authorizations, qualifications and Orders, (iii) providing such other information to any Governmental Authority as such Governmental Authority may lawfully request in connection herewith, and (iv) using reasonable best efforts to obtain such other consents, approvals or waivers from third parties, including pursuant parties that are (A) necessary to consummate the contracts set forth on Section 4.04 of Transactions or (B) as otherwise reasonably determined by Parent and the Company Disclosure Letterafter the date of this Agreement; provided that, notwithstanding the foregoing, in no event shall that neither the Company or nor any of its Subsidiaries be obligated to bear any expense or shall pay any fee (other than the payment of nominal administrative, processing consideration or similar fees make any agreements or charges) or grant any concession commitments in connection with obtaining the any such necessary consents, approvals or waivers referred to in this clause (ii), (iii) without the obtaining prior written consent of all necessary actions or nonactions Parent; and consents from, provided further that Parent and the giving Company acknowledge that, other than those consents, approvals, non-disapprovals, orders and other authorizations of any necessary notices toGovernmental Authority set forth on Section 8.01(d) of the Company Disclosure Schedule and/or Section 8.01(d) of the Parent Disclosure Schedule, Governmental Authorities or that are otherwise expressly contemplated by Article VIII, no consents, approvals or waivers from any Person shall be a condition to the obligations of the Company, Parent and third parties Merger Sub to consummate the Merger. Upon the terms and subject to the making conditions of all necessary registrationsthis Agreement each party hereto agrees to make an appropriate filing, declarations and filings under if necessary, pursuant to the HSR Act, which shall be made Act as soon promptly as reasonably practicable following the date hereof and practicable, but in any event no later than fifteen (15) ten Business Days following the date hereofof this Agreement, or are required or advisable and to supply as promptly as reasonably practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Each party hereto agrees to make as promptly as reasonably practicable after the date of this Agreement its respective filings and notifications, if any, under any other applicable foreign, federal or state antitrust, competition or pre-merger notification Laws fair trade Laws, and to supply as promptly as reasonably practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to such Laws. Each party will promptly notify the other of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) notice from any Person or Governmental Authority alleging that the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials consent of such entity Person is or may be required in the course of its review of this Agreement or connection with the Transactions, including the Merger, .
(vb) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance Notwithstanding anything in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall will Parent or its Subsidiaries (including First Merger Sub and Second be obligated to take any action, including entering into any consent decree, hold separate orders or other arrangements, that (i) requires the divestiture of any assets of any of the Company, Parent or Merger Sub andor any of their respective Subsidiaries, after the Effective Time(ii) limits Parent’s freedom of action with respect to, or its ability to retain, the Surviving Corporation Company and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion thereof or any of Parent’s or its Affiliates’ other assets or their respective businesses or assets, including after giving effect to the Transactionsbusinesses, or (Biii) in Parent’s reasonable judgment, would be expected to have a material adverse impact on any limitation on of its businesses, or the ability of Parent businesses to be acquired by it pursuant to this Agreement, either individually or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of in the Company or its Subsidiaries, including after giving effect to the Transactionsaggregate; provided, however, it being understood that Permitted Restrictions affecting that, if necessary to obtain any consent, approval, non-disapproval, order and other authorization of any Governmental Authority set forth on Section 8.01(d) of the operations Company Disclosure Schedule or Section 8.01(d) of the Parent Disclosure Schedule, Parent shall agree to propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or its Subsidiaries (includingotherwise, for this purposethe sale, divestiture, disposition of, or any limitation on, the assets or businesses or products or product lines of the Company and its SubsidiariesSubsidiaries that, individually or in the aggregate, generated total worldwide revenues of up to $150,000,000 for the twelve (12) shall be deemed not to be a limitation on the ability to exercise full rights of ownershipmonth period ended September 30, 2016. In no event shall If requested by Parent, the Company or any of its Subsidiaries be permitted to commit or will agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to contemplated by this Section 7.07(a) unless 7.09(b), provided that the effectiveness of such agreement or action is conditioned upon the Closing.
(c) Subject to Section 7.09(b), each of the parties hereto agrees to cooperate and use reasonable best efforts to contest and resist any Action, including any administrative or judicial Action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits consummation of the Transactions, including by pursuing all available avenues of administrative and judicial appeal. Parent shall be entitled to direct, in consultation with the Company, the defense of the Transactions in any antitrust investigation or litigation by, or negotiations with, any Governmental Authority or other Person relating to the Merger or regulatory filings under applicable Law.
(d) Each party shall promptly notify the others of any material communication it receives from any Governmental Authority relating to any filings, or submissions under the HSR Act or other applicable foreign, federal or state antitrust, competition or fair trade Laws. The Company agrees to provide promptly to Parent and Merger Sub all necessary information and assistance as any Governmental Authority may from time to time require in connection with the obtaining of the relevant approvals, consents or expiration of waiting periods in relation to these filings. The Company shall promptly provide all reasonable assistance and cooperation to allow Parent and Merger Sub to prepare and submit any filings, or submissions under the HSR Act or other applicable foreign, federal or state antitrust, competition or fair trade Laws, including providing to Parent and Merger Sub any information that Parent and Merger Sub may from time to time require for the purpose of any filing, notification, application or request for further information made in respect of any such filing. Notwithstanding anything to the contrary contained in this Agreement, Parent, after prior consultation with the Company, shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust, competition or investment review clearances, and shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining any necessary antitrust, competition or investment review clearances. Neither Parent nor Company shall agree to participate in any substantive meeting, telephone call or discussion with any Governmental Authority in respect of any filings, investigation (including any settlement of an investigation), or other inquiry related to the Transactions unless it consults with the other party in advance and, unless prohibited by such Governmental Authority, gives the other party the opportunity to attend and participate at such meeting, telephone call or discussion.
Appears in 1 contract
Samples: Merger Agreement (Metaldyne Performance Group Inc.)
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to party will use its reasonable best efforts to take, or cause to be taken, all actions that are and to do, or cause to be done, all things necessary, proper or advisable to consummate the Merger and make effective the Transactionsother transactions contemplated by this Agreement as promptly as practicable, including using preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees (i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Law with respect to the transactions contemplated hereby as promptly as practicable after the date hereof, (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law, (iii) to use its reasonable best efforts to accomplish take or cause to be taken all other actions necessary, proper or advisable to cause the following: (i) the satisfaction expiration or termination of the conditions precedent set forth in Article VIIIapplicable waiting periods with respect to the approval of the Merger under the HSR Act and any other applicable Antitrust Laws, (iiiv) to use its reasonable best efforts to defend any Action, whether brought by a Governmental Entity or a third party, challenging the obtaining of all Merger or the other transactions contemplated hereby (provided, that nothing in this clause (iv) shall require any party hereto to agree to any amendment to or waiver under this Agreement), (v) to use its reasonable best efforts to obtain any necessary consents, approvals or waivers from third parties, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of to execute and deliver any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably additional instruments necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in consummate the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired Merger and the avoidance of an Action in other transactions contemplated hereby and to fully carry out the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision purposes of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the ClosingAgreement.
Appears in 1 contract
Samples: Merger Agreement (Affiliated Computer Services Inc)
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto Party agrees to use use, and to cause its Subsidiaries to use, its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Transactions, including using its reasonable best efforts to accomplish the following: (i) the satisfaction of the conditions precedent set forth in Article VIII, Section 8.01 and Section 8.02 (ii) in the obtaining of all necessary consents, approvals or waivers from third parties, including pursuant to the contracts set forth on Section 4.04 case of the Company Disclosure LetterParties) and Section 8.01 and Section 8.03 (in the case of the Parent Parties); provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings (including filings that are required or advisable under the HSR Act, and other registrations, declarations and filings with, or notices to, Governmental Authorities, that may be required under the HSR Act (which shall be made as soon as reasonably practicable practical following the date hereof and in any event no later than fifteen (15) 15 Business Days following the date hereof, ) or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, ); (iviii) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, Mergers; (viv) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party Third Party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger Mergers; and (viv) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, Mergers including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall any Parent Party or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective TimeClosing, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity Company and its Subsidiaries) or any Company Party or its Subsidiaries be required to agree to or accept any actions that individually or in the aggregate would have, or would reasonably be expected to have, (A) any commitmentan effect that, undertaking individually or Order in the aggregate, would or would reasonably be expected to divesthave a material adverse effect on the business, hold separate assets, results of operations or otherwise dispose financial condition of any portion of Parent, its or Subsidiaries and its Affiliates (including the Company Parties and their respective businesses or assetsSubsidiaries), including taken as a whole (after giving effect to the Transactions, Transactions but before giving effect to such effect); or (B) any limitation a prohibition on Parent and its Affiliates owning, retaining, controlling, operating or managing a material portion of the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock business of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Parties and their respective Subsidiaries (includingincluding any requirement to implement a voting trust, for this purpose, proxy agreement or substantially similar arrangement in respect of the Company Parties and its their respective Subsidiaries) shall be deemed not to be (any such action, a limitation on the ability to exercise full rights of ownership“Burdensome Effect”). In no event shall the Company (x) any Parent Party or any of its Subsidiaries be permitted to commit or agree to any remedy action that individually or in the aggregate would have or would reasonably be expected to have Burdensome Effect without the Company’s prior written consent or (including y) any matter described Company Party or any of its Subsidiaries commit or agree to any action in clauses (A) and (B) and any Permitted Restrictionconnection with the efforts contemplated by this Section 7.01(a) without Parent’s prior written consent. Nothing in this Section 7.07(a7.01(a) shall require any party Party to take or agree to take any action or agree to anything with respect to its business or operations pursuant to this Section 7.07(a7.01(a) unless the effectiveness of such agreement or action is conditioned upon the Closing.
(b) Parent shall determine the strategy to be pursued for obtaining, and lead the effort to obtain, and communications regarding, all necessary actions or nonactions and consents from Governmental Authorities in connection with the Transactions and the Company shall take all reasonable actions to support Parent in connection therewith (subject to other express requirements set forth herein); provided, however, that Parent shall reasonably consult with the Company as to the strategy, positions and status of the actions referred to in this Section 7.01(b), including all substantive communications with any Governmental Authority relating to Antitrust Laws, and consider in good faith any comments made by the Company with respect thereto. Each of the Parties shall, and shall cause their respective Subsidiaries to, (i) reasonably cooperate with each other in connection with any filing or submission with any Governmental Authorities in connection with the Transactions and any consents from any Governmental Authority in connection therewith and any investigation or other inquiry related thereto and in connection with resolving any such investigation or inquiry with respect to any such filing or the Mergers; (ii) not extend any waiting or suspension period under any applicable Antitrust Laws (including any “pull and refile”) or enter into any agreement with any Governmental Authority not to consummate the Mergers except with the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed); (iii) respond as promptly as practicable to any applicable inquiries or requests received from any Governmental Authority for additional information or documentation in connection with the Transactions; (iv) promptly make any applicable further filings or information submissions pursuant thereto that may be necessary or advisable in connection with the Transactions; and (v) promptly make any requisite filings or submissions required or advisable under any applicable Antitrust Laws in connection with the Transactions. Each of the Parties shall, and shall cause their respective Subsidiaries shall (A) promptly notify the other Parties of any written or oral communication to that Party or its Subsidiaries or Representatives from any Governmental Authority regarding the parties’ collaborative efforts to obtain consents to the Mergers under Antitrust Laws, (B) subject to applicable Law and to the extent reasonably practicable, permit the other to review and comment on any substantive written communication regarding such efforts prior to providing such communication to any Governmental Authority and (C) to the extent reasonably practicable, not agree to participate, or permit its Subsidiaries or Representatives to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning consents to the Transactions under Antitrust Laws unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority and reasonably practicable, gives the other party the opportunity to attend and participate. Without limiting the foregoing, no Parent Party, on the one hand, or Company Party, on the other hand, shall make any filings, submissions or substantive written communications to any Governmental Authority to obtain consents to the Transactions under Antitrust Laws without first providing a written copy of such filing, submission or communication to the other (or as appropriate to such party’s outside counsel) and allowing the other a reasonable opportunity to provide comments on such filing, submission or communication prior to submission. Each of Parent and the Company covenant and agree to incorporate all reasonable comments of the other (or as appropriate such Party’s outside counsel) with respect to such filings, submissions and communications prior to delivery of the same to any Governmental Authority. Any disclosure or provision of information or documents by one Party (or any of its Affiliates) to the other under this Section 7.01 may be made on an outside counsel only basis.
(c) During the period between the date of this Agreement and the Closing, to the extent reasonably requested by the other Party, each Party shall use its reasonable best efforts, and shall cooperate with each other, to obtain as soon as reasonably practicable the consents from third parties under Contracts required in connection with the consummation of the Transactions. Other than to the extent contemplated by Section 7.01(a)(v), no party shall have any obligation to commence or participate in any Action in order to obtain any such consents. Notwithstanding the foregoing, during the period between the date of this Agreement and the Closing, without the prior written consent of Parent, no Company Party or any of its Subsidiaries shall (i) agree to pay any consideration or offer or grant any financial accommodation to induce a waiver or obtain a consent from any Person, or (ii) agree to modify any terms of any Contract to induce any such waiver or obtain any such consent. Parent acknowledges, on behalf of itself and its Affiliates, that obtaining such consents is not a condition to Closing and that certain of such consents may not been obtained as of the Closing.
Appears in 1 contract
Samples: Merger Agreement (Forward Air Corp)
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreementhereof, each of the parties hereto agrees to shall use its reasonable best efforts (exercised diligently and in good faith) to take, or cause to be taken, all actions that are and to do, or cause to be done, all other things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the Transactionstransactions contemplated by this Agreement, including using its reasonable best efforts to accomplish the following: (i) the satisfaction of the obtain in a timely manner all necessary waivers, consents, authorizations and approvals and to effect all necessary registrations and filings, and otherwise to satisfy or cause to be satisfied all conditions precedent set forth in Article VIII, to its obligations under this Agreement.
(iib) the obtaining of all necessary consents, approvals or waivers from third parties, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or Notwithstanding any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event Parent shall Parent not be obligated to divest, abandon, license, dispose of, hold separate or take similar action with respect to any portion of the business, assets or properties (tangible or intangible) of Parent, any of its Subsidiaries or the Companies in connection with seeking to obtain or obtaining any waiver, consent, authorization or approval of any Person associated with the consummation of the transactions contemplated hereby or otherwise.
(including First Merger Sub and Second Merger Sub andc) If, at any time after the Effective Time, any such further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation Corporations with full right, title and its Subsidiaries andpossession to all assets, after property, rights, privileges, powers and franchises of the Second Effective TimeCompanies and Merger Subs, the Surviving Entity officers and its Subsidiaries) be required directors of the Companies and Merger Subs immediately prior to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate the Effective Time are fully authorized in the name of their respective corporations or otherwise dispose to take, and will take, all such lawful and necessary or desirable action. -------------------------------------------------------------------------------- -53- Agreement and Plan of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closing.Merger Execution Copy 58
Appears in 1 contract
Reasonable Best Efforts; Further Action. (a) Upon Parent, Merger Sub and the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to Company shall use its their reasonable best efforts to taketake or cause to be taken all appropriate action, and to do, or cause to be takendone, all actions that are necessary, proper things necessary or reasonably advisable under applicable Laws to consummate and make effective the Transactions, including using their reasonable best efforts to obtain, or cause to be obtained, all waivers, permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials and parties to contracts with the Company and the Subsidiaries that may be or become necessary for the performance of obligations pursuant to this Agreement and the consummation of the Transactions and all parties hereto will cooperate fully with the other parties hereto in promptly seeking to obtain all such waivers, permits, consents, approvals, authorizations, qualifications and Orders. Upon the terms and subject to the conditions of this Agreement, each party hereto agrees to make any appropriate filings, if necessary or advisable (in the opinion of Parent), pursuant to the HSR Act, the EU Merger Regulation or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws with respect to the Transactions as promptly as practicable and to supply as promptly as practicable and advisable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act, the EU Merger Regulation or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws. All antitrust filings to be made shall be made in substantial compliance with the requirements of the HSR Act, the EU Merger Regulation and other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws, as applicable.
(b) The parties hereto shall cooperate and assist one another in connection with all actions to be taken pursuant to Section 7.08(a), including the preparation and making of the filings referred to therein and, if requested, amending or furnishing additional information hereunder. The Company shall use its reasonable best efforts to accomplish the following: (i) the satisfaction of the conditions precedent set forth in Article VIII, (ii) the obtaining of provide or cause to be provided promptly to Parent all necessary consents, approvals or waivers information and assistance as any Governmental Authority may from third parties, including pursuant time to the contracts set forth on Section 4.04 of the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession time require in connection with obtaining the relevant waivers, permits, consents, approvals approvals, authorizations, qualifications, Orders or waivers referred expiration of waiting periods in relation to these filings or in this clause (iiconnection with any other review or investigation of the Transactions by a Governmental Authority. The Company shall use its reasonable best efforts to provide or cause to be provided promptly all assistance and cooperation to allow Parent to prepare and submit any filings or submissions under the HSR Act, the EU Merger Regulation or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws, including providing to Parent any information that Parent may from time to time require for the purpose of any filing, notification, application or request for further information made in respect of any such filing. Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances and shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining any necessary antitrust or competition clearances; provided, however, that, with respect to the jurisdictions referenced in Section 8.01(d), (iii) Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of obtaining of all necessary actions antitrust or nonactions competition clearance in those jurisdictions and consents fromconsult with the Company prior to taking any material substantive position in any written submissions or, and to the giving of extent practicable, discussions with Governmental Agencies in those jurisdictions. The Company shall consult with Parent prior to taking any necessary notices to, Governmental Authorities and third parties and material substantive position with respect to the making of all necessary registrations, declarations and filings under the HSR Act, which the EU Merger Regulation or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws, in any written submission to, or, to the extent practicable, in any discussions with, any Governmental Authority. With respect to the jurisdictions referenced in Section 8.01(d), each party shall permit the other party to review and discuss in advance, and shall consider in good faith the views of the other party in connection with, any analyses, presentations, memoranda, briefs, written arguments, opinions, written proposals or other materials to be made submitted to the Governmental Authorities in those jurisdictions with respect to such filings. Each party shall keep the other apprised of the material content and status of any material communications with, and material communications from, any Governmental Authority with respect to the Transactions, including promptly notifying the other of any material communication it receives from any Governmental Authority relating to any review or investigation of the Transactions under the HSR Act, the EU Merger Regulation or other applicable foreign, federal, state or supranational antitrust, competition, fair trade or similar Laws. The parties to this Agreement shall, and shall cause their respective Affiliates to use their reasonable best efforts to, provide each other with copies of all material, substantive correspondence, filings or communications between them or any of their respective Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the Transactions; provided, however, that materials may be redacted (i) to remove references concerning the valuation of the Company and its Subsidiaries; (ii) as soon necessary to comply with contractual arrangements or applicable Laws; and (iii) as reasonably practicable following necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(c) Parent and the date hereof Company shall, and shall cause each of their respective Subsidiaries to, use their reasonable best efforts to take any and all steps necessary to avoid or eliminate each and every legal impediment under any applicable state, federal, foreign or supranational antitrust, competition, fair trade or similar Law that may be asserted by any antitrust or competition Governmental Authority or any other party so as to enable the parties hereto to close the Transactions as promptly as practicable, and in any event no later than fifteen (15) Business Days following prior to the date hereofOutside Date, including, subject to the last sentence of this Section 7.08(c), proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture or disposition of their assets, properties or businesses, and the entrance into such other arrangements, as are required necessary or reasonably advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any Action by injunction, temporary restraining order or other order in any Governmental Authority suit or third party that proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the Merger Transactions. In addition, subject to the last sentence of this Section 7.08(c), Parent and the Company shall, and shall cause each of their respective Subsidiaries to, defend through litigation on the merits any claim asserted in court or administrative or other tribunal by any Person (viincluding any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the defending or contesting of any Actions challenging this Agreement or Closing prior to the consummation Outside Date; provided, however, that such litigation in no way limits the obligations of the Merger, including seeking parties to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection comply with and without limiting the generality of the foregoing, their reasonable best efforts obligations under the terms of this Section 7.08. Parent shall include (have the sole and exclusive right to direct and control any litigation, negotiation or other action, with counsel of its own choosing, and the Company agrees to cooperate with Parent with respect thereto; provided, however, that, with respect to remediesthe jurisdictions referenced in Section 8.01(d), Parent shall be limited to) Parent consult in advance with the Company and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in good faith take the United States and, if applicable, Company’s views into account regarding the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation overall strategic direction of the Mergerdefense of any such litigation and consult with the Company prior to taking any material substantive positions, and (2) making dispositive motions or other material substantive filings or entering into any antitrust clearance required to be obtained in the UK and Germany (if applicable))negotiations concerning such litigation. Notwithstanding the foregoing or any other provision of this Agreement to the contraryAgreement, in no event shall (i) none of Parent or and any of its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) Affiliates shall be required to agree to any sale, transfer, license, separate holding, divestiture or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactionsother disposition of, or (B) to any prohibition of or any limitation on the ability of Parent or its Subsidiaries to acquire or hold acquisition, ownership, operation, effective control or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall , or other modification of rights in respect of, of (each, a “Divestiture”), any assets or businesses of DePuy, Inc. or any of its Subsidiaries or of the Company or any of its Subsidiaries be that, in the aggregate, are material relative to (A) DePuy, Inc. and its Subsidiaries, taken as a whole, or (B) the Company and its Subsidiaries, taken as a whole, and (ii) the Company, only at the direction of Parent (in connection with satisfying the foregoing obligations), shall agree to any Divestiture of any of its assets or the assets of any of its Subsidiaries or Affiliates so long as such Divestiture is conditioned on the consummation of the Merger.
(d) With respect to the jurisdictions referenced in Section 8.01(d), Parent shall, to the extent practicable and permitted by the relevant Governmental Authority, give the Company (through its counsel) the opportunity to commit attend and participate in all substantive meetings, telephone calls or discussions in respect of any filings, investigation (including settlement of the investigation), litigation or other inquiry; provided that, Parent or its representatives may conduct such a meeting, telephone call or discussion without the Company or its representatives present if Parent determines in good faith, taking into account the relevant facts and circumstances at the time (including the nature of the jurisdiction and the relevant Governmental Authority in question), that the taking of such action would enhance the likelihood of obtaining any necessary antitrust, competition, fair trade or similar clearance by the Outside Date; and provided further that to the extent practicable, Parent shall consult with the Company in advance and consider in good faith the view of the Company in making any such determination.
(e) Each party hereto shall and shall cause its respective Subsidiaries to respond as promptly as reasonably practicable and advisable to any inquiries or requests for information and documentary material received from any Governmental Authority in connection with any antitrust or competition matters related to this Agreement and the Transactions. The Company and its Subsidiaries shall not, but Parent may if in its good faith judgment it determines (after consulting in advance with the Company and in good faith taking the Company’s views into account) that the taking of such action would enhance the likelihood of obtaining any necessary antitrust, competition, fair trade or similar clearance by the Outside Date, extend any waiting period or agree to refile under the HSR Act, the EU Merger Regulation or any remedy other applicable state, federal, foreign or supranational antitrust, competition, fair trade or similar Laws.
(including f) The Company and the Company Board shall use their reasonable best efforts to (i) ensure that no state takeover Law or similar Law is or becomes applicable to this Agreement, the Merger or any matter described in clauses (A) of the other Transactions and (Bii) and if any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take state takeover Law or agree to take any action with respect to its business or operations pursuant similar Law becomes applicable to this Section 7.07(a) unless Agreement, the effectiveness Merger or any of the other Transactions, ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such agreement or action is conditioned upon Law on this Agreement, the ClosingMerger and the other Transactions.
Appears in 1 contract
Samples: Merger Agreement (Johnson & Johnson)
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to party will use its reasonable best efforts to take, or cause to be taken, all actions that are and to do, or cause to be done, all things necessary, proper or advisable to consummate the Merger and make effective the Transactionsother transactions contemplated by this Agreement as promptly as practicable and in any event on or prior to the Outside Date, including using preparing and filing or delivering as promptly as practicable and advisable (with each party considering in good faith any views or input provided by the other party with respect to the timing thereof) all necessary or advisable filings, information updates, responses to requests for additional information and other presentations required by or in connection with seeking any regulatory approval, exemption, change of ownership approval, or other authorization from, any Governmental Entity, or to obtain, as promptly as practicable, all consents, approvals, clearances, authorizations, termination or expiration of waiting periods, non-actions, waiver, Permits or orders, of or by any Governmental Entity, in each case that are necessary or advisable in connection with the Merger or any of the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees (i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Law with respect to the transactions contemplated hereby as promptly as practicable and advisable after the date hereof (with each party considering in good faith any views or input provided by the other party with respect to the timing thereof), (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law and (iii) to use its reasonable best efforts to accomplish take or cause to be taken all other actions necessary, proper or advisable to cause the following: expiration or termination of the applicable waiting periods with respect to the approval of the Merger under the HSR Act and any other applicable Antitrust Laws.
(b) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 5.03(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other applicable Antitrust Law, use its reasonable best efforts to (i) the satisfaction of the conditions precedent set forth cooperate in Article VIIIall 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 under applicable Antitrust Laws; (ii) keep the obtaining other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement, including furnishing the other with any written notices or other communications received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Entity and of any communication received or given in connection with any proceeding by a private party under applicable Antitrust Laws, in each case regarding any of the transactions contemplated hereby; and (iii) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party under applicable Antitrust Laws, with any other person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences in accordance with Antitrust Law. For purposes of this Agreement, (A) “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 necessary other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition and (B) “Foreign Antitrust Laws” means the applicable requirements of antitrust competition or other similar Laws, rules, regulations and judicial doctrines of jurisdictions other than the United States. Notwithstanding the foregoing, Parent and Merger Sub shall determine strategy and timing, lead all proceedings and coordinate all activities with respect to seeking any actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers from of any Governmental Entity or third partiesparty as contemplated hereby, including pursuant to the contracts set forth on Section 4.04 of and the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company use its reasonable best efforts to take such actions as reasonably requested by Parent or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession Merger Sub in connection with obtaining the any such actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers referred to waivers; provided, that Parent and Merger Sub will consider in this clause (ii), (iii) good faith any views or input provided by the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and Company with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closingmatters.
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Each party hereto agrees to shall use its reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Transactions, including using its reasonable best efforts to accomplish obtain, or cause to be obtained, all permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials and parties to Contracts with the following: (i) Company and its Subsidiaries that may be or become necessary for the satisfaction performance of the conditions precedent set forth obligations of such party hereto pursuant to this Agreement and the consummation of the Transactions and will cooperate fully with the other parties in Article VIIIpromptly seeking to obtain all such permits, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesapprovals, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letterauthorizations, qualifications and Orders; provided that, notwithstanding for the foregoingavoidance of doubt, in no event action permitted to be taken pursuant to Section 6.01 or Section 7.03 hereof shall be prohibited by this sentence.
(b) Each of the Company parties hereto agrees to cooperate and use its reasonable best efforts to contest and resist any Action, including any administrative or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents fromjudicial Action, and the giving to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits consummation of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Mergerincluding, (v) the taking of all reasonable steps as may be necessary without limitation, committing to avoid any Action and effecting, by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divestconsent decree, hold separate orders, or otherwise dispose otherwise, the restructuring, reorganization, sale, divestiture or disposition of any portion such of its or their respective businesses or assets, including after giving effect to properties or businesses; provided that nothing herein shall require the Transactions, or (B) any limitation on the ability of Parent Company or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action that is conditioned not contingent upon the ClosingClosing or that would be effective prior to the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Global-Tech Advanced Innovations Inc.)
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to Party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each Party agrees (i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Law with respect to the transactions contemplated hereby as promptly as practicable after the date hereof, (ii) to supply as promptly as reasonably practicable any additional information and documentary material that are may be requested pursuant to the HSR Act or any other applicable Antitrust Law and (iii) use its reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to consummate cause the expiration or termination of the applicable waiting periods with respect to the approval of the Merger or the Offer, as applicable, under the HSR Act and make effective any other applicable Antitrust Laws.
(b) Each of Parent and Merger Sub, on the Transactionsone hand, including using and the Company, on the other hand, shall, in connection with the efforts referenced in Section 6.03(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other applicable Antitrust Law, use its reasonable best efforts to accomplish the following: (i) the satisfaction of the conditions precedent set forth cooperate in Article VIIIall 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 obtaining other Party reasonably informed of all necessary consents, approvals or waivers from third partiesthe status of matters related to the transactions contemplated by this Agreement, including pursuant to furnishing the contracts set forth on Section 4.04 other with any written notices or other communications received by such Party from, or given by such Party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Company Disclosure Letter; provided that, notwithstanding Department of Justice (the foregoing, in no event shall the Company “DOJ”) or any other U.S. or foreign Governmental Entity and of its Subsidiaries be obligated to bear any expense communication received or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession given in connection with obtaining any proceeding by a private party, in each case regarding any of the consents, approvals or waivers referred to in this clause (ii), transactions contemplated hereby; and (iii) permit the obtaining of all necessary actions or nonactions and consents fromother Party to review any communication given by it to, and the giving consult with each other in advance of any necessary notices tomeeting or conference with, the FTC, the DOJ or any other Governmental Authorities Entity or, in connection with any proceeding by a private party, with any other person, and third parties to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other Party the opportunity to attend and participate in such meetings and conferences in accordance with Antitrust Law. For purposes of this Agreement, (A) “Antitrust Law” means the making of all necessary registrationsXxxxxxx Act, declarations and filings under as amended, the Xxxxxxx Act, as amended, the HSR Act, which shall be made the Federal Trade Commission Act, as soon as reasonably practicable following the date hereof amended, Foreign Antitrust Laws and in any event no later than fifteen (15) Business Days following the date hereofall other federal, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”)state and foreign, if any, (iv) statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement purpose or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying monopolization or preventing the consummation restraint of the Merger and (vi) the defending trade or contesting lessening of any Actions challenging this Agreement competition through merger or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) acquisition and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the Closing.“Foreign
Appears in 1 contract
Reasonable Best Efforts; Further Action. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties Each party hereto agrees to shall use its reasonable best efforts to take, or cause to be taken, all actions that are appropriate action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Transactions, including using its reasonable best efforts to accomplish the following: (i) to obtain, or cause to be obtained, all permits, consents, approvals, authorizations, qualifications and Orders of all Governmental Authorities and officials and parties to Contracts with the satisfaction Company and its Subsidiaries that may be or become necessary for the performance of the conditions precedent set forth in Article VIII, obligations of such party hereto pursuant to this Agreement and the consummation of the Transactions and (ii) to consummate the obtaining transactions contemplated by the Rollover Agreement and the Additional Rollover Agreements (if any), including execution of the Shareholders’ Agreement referred to in the Rollover Agreement, and will cooperate fully with the other parties in promptly seeking to obtain all necessary such permits, consents, approvals or waivers from third partiesapprovals, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letterauthorizations, qualifications and Orders; provided that, notwithstanding for the foregoingavoidance of doubt, in no event shall the Company action permitted to be taken pursuant to Section 6.01 or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which Section 7.03 hereof shall be made as soon as reasonably practicable prohibited by this sentence.
(b) Upon the terms and subject to the conditions of this Agreement, each party hereto agrees to make an appropriate filing, if necessary, pursuant to the PRC Anti-Monopoly Law with respect to the Merger promptly following the date hereof of this Agreement, to supply as promptly as practicable to the appropriate Governmental Authorities any additional information and in documentary material that may be requested pursuant to the PRC Anti-Monopoly Law and to use its reasonable best efforts to obtain approval, consent or clearance from appropriate Governmental Authorities under the PRC Anti-Monopoly Law.
(c) Each party hereto shall promptly notify the others of any event no later than fifteen (15) Business Days following material communication it receives from any Governmental Authority relating to any filing or submissions under the date hereof, PRC Anti-Monopoly Law or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws fair trade Laws. Each party agrees to provide promptly to the other parties all information and assistance reasonably necessary in connection with preparing and submitting such filings and obtaining the relevant approvals, consents or expiration of any jurisdiction waiting periods in relation to such filings.
(collectivelyd) Each of Parent and Merger Sub, “Antitrust Laws”)on the one hand, if anyand the Company, on the other hand shall, subject to applicable Law, (ivi) permit counsel for the taking other party to review in advance and consider in good faith the views of the other party in connection with any proposed written communications with Governmental Authorities concerning the Transactions under the PRC Anti-Monopoly Law or other applicable antitrust, competition or fair trade Laws, and (ii) provide counsel for the other party with copies of all reasonable steps filings made by such party to provide any supplemental information requested by antitrust, competition, or fair trade Governmental Authority and all correspondence between such party (and its advisors) and any antitrust, competition, or fair trade Governmental Authority, including participating and any other information supplied by such party and such party’s Affiliates to or received from any antitrust, competition, or fair trade Governmental Authority in meetings connection with officials the proposed Transactions; provided, however, that such materials may be redacted (A) to remove references concerning the valuation of such entity in the course Company, (B) as necessary to comply with contractual arrangements, and (C) as necessary to address reasonable privilege and confidentiality concerns.
(e) Each of the parties hereto agrees to cooperate and use its review of this Agreement or the Transactionsreasonable best efforts to contest and resist any Action, including the Mergerany administrative or judicial Action, and to have vacated, lifted, reversed or overturned any Order (vwhether temporary, preliminary or permanent) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority that is in effect and that restricts, prevents or third party that would otherwise have the effect of materially delaying or preventing the prohibits consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable))Transactions. Notwithstanding the foregoing or any other provision of anything else in this Agreement to the contrary, in no event shall Parent or its Subsidiaries none of the parties hereto nor any of their Affiliates (including First Merger Sub and Second Merger Sub andincluding, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its SubsidiariesCorporation) shall be required to propose or agree to or accept (A) any commitment, undertaking or Order condition, to enter into any consent decree, to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) and (B) and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of its business material businesses, services or operations pursuant assets, or pay any material amounts (other than the payment of filing fees and expenses and fees of counsel).
(f) Immediately after the execution of this Agreement, Parent shall duly approve and adopt this Agreement in its capacity as sole stockholder of Merger Sub in accordance with applicable Law and the certificate of incorporation and bylaws of Merger Sub and deliver to this Section 7.07(a) unless the effectiveness Company evidence of such agreement its vote or action is conditioned upon the Closingby written consent so approving and adopting this Agreement.
Appears in 1 contract
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to party will use its reasonable best efforts to take, or cause to be taken, all actions that are and to do, or cause to be done, all things necessary, proper or advisable to consummate the Merger and make effective the Transactionsother transactions contemplated by this Agreement as promptly as practicable and in any event on or prior to the Outside Date, including using preparing and filing or delivering as promptly as practicable and advisable (with each party considering in good faith any views or input provided by the other party with respect to the timing thereof) all necessary or advisable filings, information updates, responses to requests for additional information and other presentations required by or in connection with seeking any regulatory approval, exemption, change of ownership approval, or other authorization from, any Governmental Entity, or to obtain, as promptly as practicable, all consents, approvals, clearances, authorizations, termination or expiration of waiting periods, non-actions, waiver, Permits or orders, of or by any Governmental Entity, in each case that are necessary or advisable in connection with the Merger or any of the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, the Company shall use its reasonable best efforts to accomplish cause the following: (i) the satisfaction of the conditions precedent set forth in Article VIII, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, including pursuant to the contracts set forth on Section 4.04 of the Company Disclosure Letter; provided that, notwithstanding the foregoing, in no event shall the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrative, processing or similar fees or charges) or grant any concession in connection with obtaining the consents, approvals or waivers referred to in this clause (ii), (iii) the obtaining of all necessary actions or nonactions and consents from, and the giving of any necessary notices to, Governmental Authorities and third parties and the making of all necessary registrations, declarations and filings under the HSR Act, which shall be made as soon as reasonably practicable following the date hereof and in any event no later than fifteen (15) Business Days following the date hereof, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”), if any, (iv) the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying or preventing the consummation of the Merger and (vi) the defending or contesting of any Actions challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required Class C Common Stock to be obtained in approved for listing upon the UK and Germany Effective Time on the NYSE, subject only to official notice of issuance.
(if applicable)). b) Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 4.03 shall limit a party’s right to terminate this Agreement pursuant to Section 6.01(b)(i) or Section 6.01(b)(ii), in accordance therewith.
(c) Subject to the contraryterms and conditions of this Agreement, in no event shall Parent each party will use its commercially reasonable efforts to take, or its Subsidiaries (including First Merger Sub cause to be taken, all actions and Second Merger Sub andto do, after the Effective Timeor cause to be done, the Surviving Corporation all things necessary, proper or advisable to seek to obtain all material consents, approvals and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose waivers of any portion of its or their respective businesses or assets, including after giving effect to third party under any contract required for the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock consummation of the Company or its Subsidiariestransactions contemplated by this Agreement. Notwithstanding the foregoing, including after giving effect nothing in this Section 4.03 will require a party to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit pay or agree to any remedy (including fee, penalty or other consideration to any matter described in clauses (A) and (B) and third party for any Permitted Restriction) without Parent’s prior written consent. Nothing in , approval or waiver under any contract required for the consummation of the transactions contemplated by this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless the effectiveness of such agreement or action is conditioned upon the ClosingAgreement.
Appears in 1 contract
Reasonable Best Efforts; Further Action. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto agrees to party will use its reasonable best efforts to take, or cause to be taken, all actions that are and to do, or cause to be done, all things necessary, proper or advisable to consummate the Merger and make effective the Transactionsother transactions contemplated by this Agreement as promptly as practicable, including using preparing and filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents necessary to consummate the Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees (i) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Law with respect to the transactions contemplated hereby as promptly as practicable after the date hereof, (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law, (iii) to use its reasonable best efforts to accomplish take or cause to be taken all other actions necessary, proper or advisable to cause the following: (i) the satisfaction expiration or termination of the conditions precedent set forth in Article VIIIapplicable waiting periods with respect to the approval of the Merger under the HSR Act and any other applicable Antitrust Laws, (iiiv) to use its reasonable best efforts to defend any Action, whether brought by a Governmental Entity or a third party, challenging the obtaining of all Merger or the other transactions contemplated hereby (provided, that nothing in this clause (iv) shall require any party hereto to agree to any amendment to or waiver under this Agreement), (v) to use its reasonable best efforts to obtain any necessary consents, approvals or waivers from third parties, including pursuant and (vi) to execute and deliver any additional instruments necessary to consummate the contracts set forth Merger and the other transactions contemplated hereby and to fully carry out the purposes of this Agreement.
(b) Each of Parent and Merger Sub, on Section 4.04 of the Company Disclosure Letter; provided thatone hand, notwithstanding and the foregoingCompany, in no event shall on the Company or any of its Subsidiaries be obligated to bear any expense or pay any fee (other than the payment of nominal administrativehand, processing or similar fees or charges) or grant any concession shall, in connection with obtaining the consentsefforts referenced in Section 5.03(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other applicable Antitrust Law, approvals use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or waivers referred to submission and in this clause connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement, including furnishing the other with any written notices or other communications received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental 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 obtaining of all necessary actions or nonactions and consents fromother party to review any communication given by it to, and the giving consult with each other in advance of any necessary notices tomeeting or conference with, the FTC, the DOJ or any other Governmental Authorities Entity or, in connection with any proceeding by a private party, with any other person, and third parties to the extent permitted by the FTC, the DOJ or such other applicable Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings and conferences in accordance with Antitrust Law. For purposes of this Agreement, (A) “Antitrust Law” means the making of all necessary registrationsSxxxxxx Act, declarations and filings under as amended, the Cxxxxxx Act, as amended, the HSR Act, which shall be made the Federal Trade Commission Act, as soon as reasonably practicable following the date hereof amended, Foreign Antitrust Laws and in any event no later than fifteen (15) Business Days following the date hereofall other Federal, or are required or advisable under other applicable antitrust, competition or pre-merger notification Laws of any jurisdiction (collectively, “Antitrust Laws”)state and foreign, if any, (iv) statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the taking of all reasonable steps to provide any supplemental information requested by any Governmental Authority, including participating in meetings with officials of such entity in the course of its review of this Agreement purpose or the Transactions, including the Merger, (v) the taking of all reasonable steps as may be necessary to avoid any Action by any Governmental Authority or third party that would otherwise have the effect of materially delaying monopolization or preventing the consummation restraint of the Merger and (vi) the defending trade or contesting lessening of any Actions challenging this Agreement competition through merger or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed. In connection with and without limiting the generality of the foregoing, reasonable best efforts shall include (and with respect to remedies, shall be limited to) Parent and its Subsidiaries offering and agreeing to undertake Permitted Restrictions as reasonably necessary to obtain pre-merger clearance in as timely a manner as reasonably possible from Governmental Authorities under Antitrust Laws in the United States and, if applicable, the UK and Germany (specifically, for (1) any waiting period applicable to the Mergers under the HSR Act to have been terminated or expired and the avoidance of an Action in the US seeking to prohibit consummation of the Merger, and (2) any antitrust clearance required to be obtained in the UK and Germany (if applicable)). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries (including First Merger Sub and Second Merger Sub and, after the Effective Time, the Surviving Corporation and its Subsidiaries and, after the Second Effective Time, the Surviving Entity and its Subsidiaries) be required to agree to or accept (A) any commitment, undertaking or Order to divest, hold separate or otherwise dispose of any portion of its or their respective businesses or assets, including after giving effect to the Transactions, or (B) any limitation on the ability of Parent or its Subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of the Company or its Subsidiaries, including after giving effect to the Transactions; provided, however, it being understood that Permitted Restrictions affecting the operations of Parent or its Subsidiaries (including, for this purpose, the Company and its Subsidiaries) shall be deemed not to be a limitation on the ability to exercise full rights of ownership. In no event shall the Company or any of its Subsidiaries be permitted to commit or agree to any remedy (including any matter described in clauses (A) acquisition and (B) “Foreign Antitrust Laws” means the applicable requirements of antitrust competition or other similar Laws, rules, regulations and any Permitted Restriction) without Parent’s prior written consent. Nothing in this Section 7.07(a) shall require any party to take or agree to take any action with respect to its business or operations pursuant to this Section 7.07(a) unless judicial doctrines of jurisdictions other than the effectiveness of such agreement or action is conditioned upon the ClosingUnited States.
Appears in 1 contract
Samples: Merger Agreement (Xerox Corp)
