Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, the actions and to do, or cause to be done, the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings). (b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18. (c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 7 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Reasonable Best Efforts. (a) Subject Notwithstanding anything in this Agreement to the terms contrary, the parties hereto agree to make an appropriate filing of a Notification and conditions Report Form pursuant to the HSR Act and to make all other filings required by, or advisable under, applicable foreign Antitrust Laws (collectively, “Foreign Antitrust Approvals”) with respect to the transactions contemplated hereby as promptly as practicable and in any event prior to the expiration of any applicable legal deadline (provided, that the submission or filing (i) of a Notification and Report Form pursuant to the HSR Act will be made within ten (10) Business Days of the date of this Agreement, each and (ii) for applicable foreign Antitrust Laws shall be submitted by the parties with the relevant notification forms, or a draft thereof, for jurisdictions where submission of a draft prior to formal notification is appropriate, within forty-five (45) calendar days of the Companydate of this Agreement; provided, further that, in the case of clause (ii), if a party is not prepared to file any such submission or filing within such period, such party’s senior executives shall discuss the reasons for the failure to meet such submission or filing deadlines with the senior executives from the other party) and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other filings required or advisable in connection with the Foreign Antitrust Approvals or any other Antitrust Law. Parent shall be entitled to direct the antitrust defense of the transaction contemplated by this Agreement in any investigation or litigation by, or negotiations with, any Governmental Entity or other person relating to the Merger or regulatory filings under applicable Antitrust Laws, provided that Parent shall consult with, and Merger Sub consider in good faith the views of, the Company throughout the antitrust defense of the transaction contemplated by this Agreement, including by providing the Company with reasonable opportunity to evaluate, as promptly as practicable, steps to be taken in pursuit of such defense. The Company shall not make any offer, acceptance or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Entity with respect to any proposed settlement, consent decree, commitment or remedy, or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested by or agreed with Parent. The Company shall use its reasonable best efforts to provide full and effective support of Parent in all material respects in all such investigations, litigation, negotiations and discussions to the extent requested by Parent. Without limiting the foregoing, the parties shall provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any such Antitrust Laws. The parties hereto agree to (i) give each other reasonable advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (ii) give each other an opportunity to participate in each of such meetings, (iii) to the extent practicable, give each other reasonable advance notice of all substantive oral communications with any Governmental Entity relating to any Antitrust Laws, (iv) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, promptly notify the other party of the substance of such communication, (v) provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws, and (vi) provide each other with copies of all written communications to or from any Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by one party to the other may be made on an outside counsel basis if appropriate. Notwithstanding anything in this Agreement to the contrary, and without limiting Parent’s right to direct the antitrust defense of the transaction contemplated by this Agreement, each of the Company and Parent agrees, and shall cause each of its Subsidiaries, to use reasonable best efforts to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign law, regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade or the significant impediment of effective competition (collectively “Antitrust Laws”), to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate each and every impediment under applicable Antitrust Laws asserted by any Governmental Entity, in each case, to cause the Merger and the other transactions contemplated hereby to occur prior to the Termination Date, including but not limited to promptly complying with or modifying any requests for additional information (including any second request) by any Governmental Entity, (y) if necessary to obtain clearance by any Governmental Entity before the Termination Date, offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of the Company and its Subsidiaries and any other restrictions on the activities of the Company and its Subsidiaries (but not, in each case, of Parent or any of its Subsidiaries other than the Company and its Subsidiaries), and (z) contesting, defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of any party hereto to consummate the transactions contemplated hereby, and taking any and all other actions to prevent the entry, enactment or promulgation thereof.
(b) Subject to the terms hereof, and except with regard to the Antitrust Laws which shall be governed by Section 6.8(a), the Company, Parent and Sub shall, and Parent and the Company shall cause their respective Subsidiaries to, each use their reasonable best efforts to:
(i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby as promptly as reasonably practicable;
(ii) obtain from any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and send any notices, in each case, which are required to be obtained, made or sent by such party or any of their Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; provided, that in connection therewith none of Parent, Sub, the Company or their respective Subsidiaries will be required to make or agree to make any material payment or accept any material conditions or obligations, including amendments to existing conditions and obligations;
(iii) as promptly as practicable, make all necessary filings and notifications, and thereafter make any other required submissions and applications with respect to this Agreement and the Merger required under any applicable Laws and regulations statute, law, rule or regulation; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated hereby as soon as reasonably practicable after by, and to fully carry out the date purposes of, this Agreement. The Company and Parent shall cooperate with each other in connection with the making of this Agreement (all such filings, submissions, applications and in any event no later than the Outside Date), including (i) using requests. The Company and Parent shall each use their reasonable best efforts to takefurnish to each other (on an outside counsel basis if appropriate) all information required for any filing, submission, application or cause request to be takenmade pursuant to the rules and regulations of any applicable statute, law, rule or regulation in connection with the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, and (iii) taking . For the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction avoidance of any Governmental Entity, each of the Companydoubt, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood Company agree that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth nothing contained in this Section 6.5(b6.8(b) shall not apply to any Transaction Litigationmodify, which is the subject of limit or otherwise affect their respective rights and responsibilities under Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date6.8(a).
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Agreement and Plan of Merger (PMC Sierra Inc), Merger Agreement (Skyworks Solutions, Inc.)
Reasonable Best Efforts. (a) Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions of this Agreementset forth herein, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby and make effective, as soon expeditiously as reasonably practicable possible after the date of this Agreement hereof (and in any event no later than before the Outside Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including (i) by using reasonable best efforts to take, or cause to be taken, the actions necessary to to: (i) cause the conditions to Closing precedent set forth in Article VII VI to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions or nonactions, waivers, licensesconsents, ordersapprovals, orders and authorizations from Governmental Entities and the making of all necessary registrations, authorizationsdeclarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all steps and remedies as may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity, (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and permits (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable to the Acquisition, this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition and (iii) taking the reasonable steps as other transactions contemplated by this Agreement may be necessary or advisable consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to make all necessary filings and obtain all minimize the effect of such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits Legal Requirement on the Acquisition (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To by seeking a waiver of the extent permissible under applicable Law or any rule, regulation or restriction application of any Governmental Entitysuch Legal Requirement, each of the Companyif available), Parent this Agreement and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 4 contracts
Samples: Implementation Agreement, Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Holding Co. Ltd.)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the things that are necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following: (i) obtain all required consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including as required under this Agreement any Material Contract, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and applicable Laws authorizations from Governmental Entities, make all necessary registrations, declarations and regulations filings and take all steps as may be necessary to obtain an approval or waiver from, or to avoid any Action by, any Governmental Entity, (iii) vigorously resist and contest any Action, including administrative or judicial Action, and seek to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the transactions contemplated hereby, including, without limitation, by vigorously pursuing all avenues of administrative and judicial appeal, and (iv) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby as soon as reasonably practicable after and fully to carry out the date purposes of this Agreement (Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any material fee, penalty or other consideration or make any other material concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent. Each of the parties hereto shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Company shall have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any event no later than the Outside Date), including (i) using reasonable best efforts to takefiling made with, or cause to be takenwritten materials submitted to, any third party and/or any Governmental Entity in connection with the Offer, the actions necessary to cause Merger and the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement. In exercising the foregoing rights, each of Parent and (iii) taking the reasonable steps Company shall act reasonably and as may be necessary or advisable promptly as practicable. Subject to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction and the instructions of any Governmental Entity, each of the Company, Company and Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with shall keep each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby.
(b) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) permit the other parties, or the other parties’ legal counsel, to review enter into any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood agreement that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, way limits the ownership or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance operation of any meetingbusiness of Parent, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, the Surviving Corporation or any of their respective Affiliates, in each case if such action would be material to the business and financial condition of Parent and Merger Sub shall, subject to Section 6.18 in its Subsidiaries (including the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges Company) taken as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit a whole after consummation of the transactions contemplated hereby on Offer and the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Merger.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Cryolife Inc), Agreement and Plan of Merger (Cardiogenesis Corp /CA), Merger Agreement (Cryolife Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub parties hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable law) to taketake promptly, or cause to be taken, the actions all actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and applicable Laws (iv) the execution and regulations delivery of any additional instruments necessary to consummate the transactions contemplated hereby as soon as reasonably practicable after by, and to fully carry out the date of purposes of, this Agreement Agreement.
(b) In connection with and in any event no later than without limiting the Outside Date)foregoing, including the Company and Parent shall (i) using use their reasonable best efforts to takeensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Merger or any of the other transactions contemplated hereby, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, and (ii) preparing if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or the Merger or any other transaction contemplated hereby, take all action necessary to ensure that the Merger and filing the other transactions contemplated by this Agreement may be consummated as promptly as practicable all documents on the terms contemplated hereby and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated hereby.
(c) In connection with and without limiting the foregoing, the Company and Parent shall use their reasonable best efforts to effect the combination (the "Bank Combination") of the Bank with Citibank FSB, or another banking subsidiary of Parent, including, without limitation, the obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions or nonactions, waivers, licenses, orders, registrations, authorizations, consents and approvals from Governmental Entities (including the OTS Approval) and permits contemplated by this Agreement, the making of all necessary registrations and (iii) filings and the taking the reasonable of all steps as may be necessary to obtain an approval or advisable waiver from, or to make all necessary filings and obtain all such consentsavoid an action or proceeding by, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits any Governmental Entity (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedingsthe OTS Approval).
(bd) To At the extent permissible under applicable Law or any rulereasonable request of Parent, regulation or restriction of any Governmental Entity, each of the Company, Parent Company and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, its subsidiaries shall use its their reasonable best efforts and cooperate with Parent in order to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyindebtedness outstanding under the Indenture, dated as of August 6, 1998, between Mercury State Holdings Inc. and The Bank of New York, as trustee (including any of its respective Subsidiariesamendments and supplemental indentures, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger"Indenture"), (iv) consult with to be called for redemption and redeemed as promptly as possible following the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communicationsClosing. Notwithstanding the foregoingIn furtherance thereof, the obligations set forth in this Company and its subsidiaries agree to request that The Bank of New York consent to shorten the notice period required pursuant to Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any 3.02 of the transactions contemplated hereby as violative of any applicable Law, each of Indenture from 60 days to 30 days or agree to accept a redemption notice that is conditioned upon the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Merger.
Appears in 4 contracts
Samples: Merger Agreement (Citigroup Inc), Agreement and Plan of Merger (Golden State Bancorp Inc), Merger Agreement (Mafco Holdings Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and the other Transactions as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or otherwise providing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits contemplated by this Agreementauthorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other Transactions, and (iiiii) taking the reasonable all steps as may be necessary or advisable necessary, subject to make all necessary filings and the limitations in this Section 6.7, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersregistrations, registrationspermits, authorizations, orders and approvals and permits (including providing all iii) executing and delivering any additional instruments reasonably necessary information or advisable to consummate the Merger and documentary material the Transactions contemplated by this Agreement and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)fully carry out the purposes of this Agreement.
(b) To In connection with and without limiting the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the parties shall give any required notices to third parties, and each of the parties shall use, and cause each of their respective Subsidiaries and Affiliates and, in the case of the Company, Parent the MSR Entities (subject to Section 9.4(f) and Merger Sub shallsolely with respect to the MSR Investments) to use, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each obtain any third party consents that are necessary, proper or advisable to consummate the Merger and the other party Transactions. Each of the parties will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any filing required filings or submission and in connection submissions with any investigation or other inquiryGovernmental Entity and will cooperate in responding to any inquiry from a Governmental Entity, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform informing the other parties of such inquiry, consulting in advance before making any communication (including the initiation presentations or submissions to a Governmental Entity and supplying each other with copies of any proceeding) received by such all material correspondence, filings or communications between either party from and any Governmental Entity with respect to this Agreement. To the extent reasonably practicable, the parties and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, their Representatives shall have the right to review in advance, subject to applicable Laws relating to advance and each of the exchange of informationparties will consult the others on, all of the information relating to such party, the other and any each of its respective Subsidiaries, which their Affiliates that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties shall, nor shall they permit their respective Representatives to, participate independently in any proceeding by meeting or engage in any private party, substantive conversation with any Governmental Entity in respect of any filing, investigation or other Person and (v) inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by such Governmental Entity or other Personapplicable Law, give without giving the other parties the opportunity to attend and or participate (whether by telephone or in person) in any such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18meeting with such Governmental Entity.
(c) If Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any objections are asserted approval or consent from any Person with respect to the transactions contemplated hereby under Merger and the other Transactions, neither the Company nor any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any Subsidiary of the transactions contemplated hereby as violative of Company shall pay or commit to pay to any applicable LawPerson whose approval or consent is being solicited any cash or other consideration, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of make any Transaction Litigation, use its reasonable best efforts to resolve accommodation or commitment or incur any such objections liability or challenges as such Governmental Entity or private party may have other obligation to such transactions under Person without the prior written consent of Parent. The parties shall cooperate to obtain such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)consents.
Appears in 3 contracts
Samples: Merger Agreement (Ellington Financial Inc.), Merger Agreement (Arlington Asset Investment Corp.), Merger Agreement (Ellington Financial Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall Parties will use its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and cooperate with the other Parties in doing, all things reasonably necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent will (i) promptly, but in no event later than 20 days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) cooperate with each other in (A) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the Merger and the other transactions contemplated hereby hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event no later than the Outside DateEnd Date (as hereinafter defined)), including (iiv) using reasonable best efforts subject to takeapplicable Law, or cause keep each other apprised in all material respects of the status of matters relating to be taken, the actions necessary to cause completion of the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this AgreementAgreement including, to the extent permitted by applicable Law, promptly furnishing the other with true and complete copies of notices or other material communications sent or received by the Company or Parent, as the case may be, or any of their Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed material communication by such party to any supervisory or Governmental Entity, and (iiiv) taking give the other reasonable steps as may be necessary or advisable notice of, and, to make all necessary filings and obtain all the extent permitted by such consentsGovernmental Entity, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary allow the other to attend and participate at any regulatory meetingsmeeting with any Governmental Entity in respect of any filings, hearings investigation or other proceedings)inquiry or proceeding relating thereto. The Company and Parent will permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity.
(bc) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental EntitySubject to Section 5.5(d), each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, Company will use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (icollectively, “Antitrust Laws”). In connection therewith and subject to Section 5.5(d), if any Action is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, each of Parent and the Company will cooperate in all respects with each other party in connection with and use their respective reasonable best efforts to contest and resist any filing such Action (through negotiation, litigation or submission otherwise), and in connection with to have vacated, lifted, reversed or overturned any investigation decree, judgment, injunction or other inquiryorder whether temporary, including any proceeding initiated by any private partypreliminary or permanent (each, (ii) keep the other parties apprised an “Order”), that is in effect and that prohibits, prevents, delays or restricts consummation of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, Merger or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any this Agreement, including by vigorously pursuing all available avenues of the transactions contemplated hereby as violative administrative and judicial appeal and all available legislative action. Each of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, Company will use its reasonable best efforts to resolve any take such objections action as may be required to cause the expiration or challenges as such Governmental Entity termination of the waiting periods under the HSR Act or private party may have other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor the Company will be required to divest, hold separate (including by trust or otherwise) or otherwise commit to take any action that limits its freedom of action with respect to its respective ability to retain or operate any of its businesses, services or assets; provided, however, that unless Parent or the Company otherwise agree, if necessary to avoid the Federal Trade Commission, Department of Justice or other Governmental Entity instituting an Action under Antitrust Laws challenging the transactions contemplated by this Agreement and seeking an Order, then Parent and the Company will agree collectively to divest or hold separate (including by trust or otherwise) or otherwise take any action that limits Parent’s or the Company’s freedom of action with respect to its respective ability to retain or operate any of its businesses, services or assets, except to the extent such applicable Law so action would reasonably be expected to have a material adverse effect after the Closing on Parent and the Surviving Corporation, taken as a whole, provided further, however, that neither Parent nor the Company may agree, without the other’s prior written consent, to permit divest or hold separate or take any other action or agree to any limitation that limits its freedom of action with respect to its ability to retain or operate any of its businesses, services or assets unless such actions are conditioned upon the occurrence of the Closing or are effective only on or after the Closing.
(e) Subject to the rights of Parent in Section 5.10, and in furtherance and not in limitation of the covenants of the Parties contained in this Section 5.5, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement, each of the Company and Parent will cooperate in all respects with each other and use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated hereby on hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.5 will limit a Party’s right to terminate this Agreement pursuant to the terms set forth in hereof so long as such Party has, prior to such termination, complied with its obligations under this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Section 5.5.
Appears in 3 contracts
Samples: Merger Agreement (American Greetings Corp), Merger Agreement (American Greetings Corp), Merger Agreement (American Greetings Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall parties will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws laws and regulations to consummate the transactions contemplated hereby by this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits, and permits authorizations necessary or advisable to be obtained from any third party and/or any Governmental Authority in order to consummate the transactions contemplated by this Agreement, Agreement and (iiiii) taking the all reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearanceswaivers, licenses, registrations, permits, authorizations, orders and approvals. The parties agree that any costs and expenses of obtaining such consents, waivers, licenses, ordersregistrations, permits, authorizations, orders and approvals shall be borne by the Company, including any costs and expenses related obtaining a consent, waiver or other approval of the parties to the Company's Third Amended and Restated Investor Rights Agreement, dated April 28, 2000, as may be amended (the "Existing Investors' Rights Agreement"). Nothing in this Agreement (including this Section 6.1) shall require Purchasers to amend any of Transaction Documents or enter into any additional agreements in order to obtain any consents, waivers, licenses, registrations, permits, authorizations, orders and approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)contemplated above.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 3 contracts
Samples: Stock Purchase Agreement (Williams Communications Group Inc), Assignment (Touch America Holdings Inc), Stock Purchase Agreement (Ibeam Broadcasting Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and the other Transactions as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (iiA) preparing and filing as promptly as practicable all documents to effect filing, in consultation with the other Party, all necessary or advisable applications, notices, petitions, filings and other documents required to be prepared or filed by such Party as promptly as practicable and advisable after the date hereof, and (B) using its reasonable best efforts to obtain as promptly as practicable and advisable and in any event prior to the Outside Date all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits contemplated authorizations necessary or advisable to be obtained by this Agreementsuch Party from any Governmental Entity (including under Antitrust Laws or any foreign direct investment laws) in order to consummate the Merger or any of the other Transactions, and (iiiii) taking cooperating with the other Party required to file such applications, notices, petitions, filings and other documents by using its reasonable best efforts to take all steps as may be necessary or advisable to make in connection therewith, including providing all necessary filings information and assistance reasonably requested by such Party.
(b) Each of Parent on one hand, and the General Partner and the Partnership, on the other hand, shall in connection with the efforts referenced in Section 6.2(a) to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances permits, and authorizations for the transactions contemplated herebyTransactions under Antitrust Laws or any foreign direct investment laws, use its reasonable best efforts to (i) promptly file or cause to be filed all required filings with respect to the Required Approvals; (ii) cooperate in all respects and consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party under any private partyAntitrust Law, (ii) keep including by allowing the other parties apprised Party to have a reasonable opportunity to review and comment on drafts of the status of matters relating to completion of the transactions contemplated hereby any filings and submissions; (iii) promptly inform the other parties Party of any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, any Governmental Entity with respect to any Antitrust Law or foreign direct investment law, by promptly providing copies to the other Party of any such written communications, and of any material communication received from any private party, in each case, or given in connection with any pending or threatened litigation proceeding by a private party under any Antitrust Law, in each case regarding any of the transactions contemplated hereby, Transactions; (iiiiv) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right Party a reasonable opportunity to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, substantive telephone call or conference call, discussion or communication with, any such Governmental Entity with respect to the subject matter of this Section 6.2(b), or, in connection with any proceeding by a private party under any private partyAntitrust Law or foreign direct investment law, with any other Person and (v) to the extent permitted by such any applicable Governmental Entity or other PersonPerson with respect to the subject matter of this Section 6.2(b), give the other parties the Party a reasonable opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If in-person meetings with any objections are asserted Governmental Entity or other Person with respect to the transactions contemplated hereby subject matter of this Section 6.2(b); provided that (x) any such written communications provided under any this Section 6.2(b) may be redacted as necessary to address attorney-client privilege or to comply with applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of (provided, however, that the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, withholding Party shall use its reasonable best efforts to resolve make appropriate substitute arrangements to permit reasonable disclosure not in violation of any such objections attorney-client privilege or challenges Law); (y) portions of such copies that are competitively sensitive in the view of the disclosing party’s outside counsel may be redacted as such Governmental Entity necessary or private party may have to such transactions under such applicable Law designated so as to permit be provided to outside counsel only.
(c) Each of Parent on one hand, and the General Partner and the Partnership, on the other hand, shall use its reasonable best efforts to obtain the expiration or termination of all waiting periods and all consents, waivers, authorizations and approvals of all Governmental Entities necessary, proper or advisable for the consummation of the transactions contemplated hereby on Transactions and to provide any notices to Governmental Entities required to be provided prior to the terms set forth Effective Time, excluding at Parent’s option selling, divesting, or otherwise disposing of, licensing, holding separate, or taking or committing to take any action that limits in any respect its freedom of action with respect to, or its ability to retain, any business, products, rights, services, licenses, assets or properties of Parent or any of its equityholders or limited partners or its or their respective Affiliates, or of Partnership or any Partnership Subsidiary or Partnership JV, or any interest therein (any, a “Divestiture Action”); provided that neither the General Partner, the Partnership nor Parent shall, without the prior written consent of the other Party, incur any significant expense or liability, enter into any significant new commitment or agreement or agree to any significant modification to any contractual arrangement to obtain such consents or certificates in each case, that would have a Partnership Adverse Impact or Parent Material Adverse Effect, as the case may be. For the avoidance of doubt, nothing in this Agreement Section 6.2 shall bind or obligate any portfolio company or investment fund (as soon as reasonably practicable after the date those terms are customarily understood among institutional private equity investors) of this Agreement (and in Stonepeak Partners LP or any event no later of its affiliated managers or advisers, or any of their direct or indirect equityholders, other than the Outside Date)Parent or its controlled Subsidiaries, to take any action with respect to Parent or any of its equityholders or limited partners or its or their respective Affiliates.
Appears in 3 contracts
Samples: Merger Agreement (Teekay LNG Partners L.P.), Merger Agreement (Teekay Corp), Merger Agreement (Teekay Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.4(d)), each of the CompanyAMID Entities, Parent on the one hand, and Merger Sub the SXE Entities, on the other hand, shall cooperate with the other and use (and shall cause their respective Subsidiaries to use) its reasonable best efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other in doing, all things, necessary, proper or advisable under applicable Law to cause the conditions to the Closing to be satisfied as promptly as practicable (and in any event no later than the Outside Date) and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including preparing and filing promptly and fully with any Governmental Authority all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Antitrust Laws), (ii) obtain promptly (and in any event no later than the Outside Date) and maintain all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the transactions contemplated hereby, (iii) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby or seek to have vacated, lifted, reversed or rescinded any injunction or restraining order or other order that prohibits, prevents, restricts or otherwise adversely affects the ability of the Parties to consummate the transactions contemplated hereby and (iv) obtain all necessary consents, approvals or waivers from third parties.
(b) In furtherance and not in limitation of the foregoing, (i) each Party hereto (including by their respective Subsidiaries) agrees to make an appropriate filing (if required) of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within 10 business days after the date of this Agreement (unless a later date is mutually agreed to by the Parties hereto) and to supply as promptly as practicable any additional information and documentary material that may be requested by any Governmental Authority pursuant to the HSR Act or any other Antitrust Law and use its reasonable best efforts to take, or cause to be takentaken (including by their respective Subsidiaries), all other actions consistent with this Section 5.4 necessary to cause the actions and to do, expiration or cause to be done, termination of any applicable waiting periods under the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby HSR Act as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including ; and (iii) using SXE and AMID shall each use its reasonable best efforts to take, or cause to be taken, the actions (x) take all action necessary to cause ensure that no state takeover statute or similar Law is or becomes applicable to any of the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, hereby and (iiiy) taking the reasonable steps as may be necessary if any state takeover statute or advisable similar Law becomes applicable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, take all action necessary to ensure that such transaction may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the transaction.
(c) Each of the Parties hereto shall use (and shall cause their respective Subsidiaries to use) its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated hereby, including by providing the other Parties documents, information and a reasonable opportunity to review and comment thereon in advance, and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the transactions contemplated hereby, including any proceeding initiated by any a private partyPerson, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Party of (and supply to the other Party) any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Entity Authority and of any material communication received from any private party, in each case, or given in connection with any pending or threatened litigation proceeding by a private Person, in each case regarding any of the transactions contemplated hereby, (iii) consult with the other Party prior to taking any material position with respect to the filings under the HSR Act or any other Antitrust Law, or in discussions with or filings to be submitted to any Governmental Authority or prior to entering into any agreement with any Governmental Authority, (iv) permit the other partiesParty to review and discuss in advance, or and consider in good faith the views of the other parties’ legal counselParty in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to review any filing, submission or other communication given by it be submitted to any Governmental Entity orAuthority with respect to filings under the HSR Act or any other Antitrust Law, (v) coordinate with the other Party in connection preparing and exchanging such information and promptly provide the other Party (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws Governmental Authority relating to the exchange of information, all of transactions contemplated hereby under the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party HSR Act or any Governmental Entity, with respect to this Agreement or the Merger), other Antitrust Law and (iv) consult with the other parties Party in advance of any meeting, conference, conference call, discussion meeting or communication with, teleconference with any such Governmental Entity Authority or, in connection with any proceeding by any a private partyPerson, with any other Person and (v) Person, and, to the extent permitted not prohibited by such the Governmental Entity Authority or other Person, give the other parties Party the opportunity to attend and participate in such meetingsmeetings and teleconferences. AMID shall have the principal responsibility for devising and implementing the strategy for obtaining any clearances required under any Antitrust Law in connection with the transactions contemplated hereby and shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining such clearances, conferencesprovided, conference callshowever, discussions that AMID shall consult in advance with SXE and communicationsin good faith take SXE’s views into account regarding the overall strategy. Notwithstanding the foregoingSubject to Section 5.6(b), the obligations set forth in Parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 6.5(b) shall not apply 5.4 in a manner so as to any Transaction Litigation, which is preserve the subject of Section 6.18applicable privilege.
(cd) If AMID and SXE (including by causing their respective Subsidiaries) agree to use their reasonable best efforts to (x) resolve any objections are asserted that a Governmental Authority or other Person may assert under any Antitrust Law with respect to the transactions contemplated hereby hereby, and (y) avoid or eliminate each and every impediment under any applicable Antitrust Law or if any suit is instituted that may be asserted by any Governmental Entity or any private party challenging any of Authority with respect to the transactions contemplated hereby as violative of any applicable Lawhereby, in each of the Companycase, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of enable the transactions contemplated hereby on the terms set forth in this Agreement Closing to occur as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date). Notwithstanding the foregoing, this clause (d) shall not impose any requirement on AMID or SXE to (i) to dispose, transfer, or separate any assets or operations, (ii) limit AMID’s freedom of action with respect to, or its ability to consolidate and control, SXE or any of their assets or businesses or any of AMID’s or its Affiliates’ other assets or businesses or (iii) limit AMID’s ability to acquire or hold, or exercise full rights of ownership with respect to, SXE.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Southcross Energy Partners, L.P.), Merger Agreement (American Midstream Partners, LP)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall Parties agrees to use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the things that are necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Mergers and the other transactions contemplated by this Agreement, including using commercially reasonable efforts to accomplish the following: (i) obtain all required consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including as required under this Agreement any Material Contract, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and applicable Laws authorizations from Governmental Entities, make all necessary registrations, declarations and regulations filings and make all commercially reasonable efforts to obtain an approval or waiver from, or to avoid any Action by, any Governmental Entity, including filings under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice, and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby as soon as reasonably practicable after and fully to carry out the date purposes of this Agreement (Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent. Each of the Parties shall furnish to each other Party such necessary information and reasonable assistance as such other Party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and the Company shall each have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appears in any event no later than the Outside Date), including (i) using reasonable best efforts to takefiling made with, or cause to be takenwritten materials submitted to, any third party and/or any Governmental Entity in connection with the actions necessary to cause Mergers and the conditions to Closing set forth in Article VII to be satisfiedother transactions contemplated hereby. In exercising the foregoing rights, (ii) preparing each of Parent and filing the Company shall act reasonably and as promptly as practicable all documents practicable. Subject to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction and the instructions of any Governmental Entity, each of the Company, Company and Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with shall keep each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other Party and its counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection therewith.
(b) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Mergers, the Surviving Corporation, the Surviving Company or any of their respective Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) permit the other parties, or the other parties’ legal counsel, to review enter into any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood agreement that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, way limits the ownership or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance operation of any meetingbusiness, conferenceproperties or assets of Parent, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shallthe Surviving Corporation, subject to Section 6.18 in the event Surviving Company or any of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)their respective Affiliates.
Appears in 3 contracts
Samples: Merger Agreement (Pioneer Energy Services Corp), Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, the Company and Purchaser shall each of cooperate with the Company, Parent other and Merger Sub use (and shall use its cause their respective subsidiaries to use) their respective reasonable best efforts to take, promptly (i) take or cause to be takentaken all actions, the actions and to do, do or cause to be donedone all things, the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Transactions as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)practicable, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable and fully all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to (ii) obtain as promptly as practicable all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may other confirmations required to be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party obtained from any Governmental Entity and any material communication received from any private partyor third party necessary, in each case, in connection with any pending proper or threatened litigation regarding any of advisable to consummate the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject Transactions. Subject to applicable Laws relating to the exchange of information, the Company and Purchaser shall have the right to review in advance, and to the extent practicable each will consult the other on, all of the information relating to such partythe Company and its subsidiaries or Purchaser and its subsidiaries, and any of its respective Subsidiariesas the case may be, which that appears in any filing made with, or written materials submitted to, any third party or and/or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person the Transactions.
(b) In furtherance and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate not in such meetings, conferences, conference calls, discussions and communications. Notwithstanding limitation of the foregoing, the obligations set forth in this Section 6.5(b) Company and Purchaser shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve (x) take all action necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby Transactions and (y) if any state takeover statute or similar Law becomes applicable to any of the Transactions, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms set forth in contemplated by this Agreement as soon as reasonably practicable after and otherwise minimize the date effect of this Agreement (and in any event no later than such Law on the Outside Date)Transactions.
Appears in 3 contracts
Samples: Tender Agreement (Odd Job Stores Inc), Tender Agreement (Odd Job Stores Inc), Tender Agreement (Odd Job Stores Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub parties shall use its reasonable best efforts (subject to, and in accordance with, applicable Law), including with respect to the matters set forth in Section 5.6 of the Parent Disclosure Schedule, to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Merger Sub or the Company or any of their respective Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals and (ii) use reasonable best efforts to take, or cause to be taken, the all other actions and to do, or cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby hereby, including taking all such further action as may be necessary to resolve such objections, if any, as any Governmental Entity may assert under Regulatory Law with respect to the transactions contemplated hereby. In furtherance of the foregoing, the parties shall take all actions necessary to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event no later than the Outside End Date), including (iA) using reasonable best efforts proposing, negotiating, committing to takeand effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or its Subsidiaries or affiliates or of the Company or its Subsidiaries and (B) otherwise taking or committing to take actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) or its affiliates’ freedom of action with respect to, or cause its or their ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing or materially delaying the Closing, provided that any such agreement or action by the Company shall be conditioned on the consummation of the Merger. Each of the Company and Parent agrees not to participate in any meeting or discussion (other than relating to the scheduling of any meetings or of any discussions), either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. The Company and Parent shall furnish the other with such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions of information to any Governmental Entity. Either Parent or the Company may designate any competitively sensitive information provided to the other under this Agreement as “outside counsel only”. Such materials and the information contained therein shall be given only to outside legal counsel of the other and will not be disclosed by such outside counsel to employees, officers or directors of their client unless express written permission is obtained in advance from the disclosing party or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (iiinstituted) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits challenging any transaction contemplated by this Agreement, and (iii) taking the reasonable steps Agreement as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction violative of any Governmental EntityRegulatory Law, each of the Company, Company and Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) shall cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its shall use their respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve contest and resist any such objections action or challenges as such Governmental Entity proceeding and to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law so as to permit overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated hereby on by this Agreement. Notwithstanding the terms set forth foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as soon as reasonably practicable after the date such party has, prior to such termination, complied with its obligations under this Agreement, including this Section 5.6.
(d) For purposes of this Agreement (Agreement, “Regulatory Law” means all federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and in any event no later than the Outside Date)judicial doctrines and other Laws.
Appears in 3 contracts
Samples: Merger Agreement (Atlas Capital Holdings, Inc.), Merger Agreement (Medianet Group Technologies Inc), Agreement and Plan of Merger (Medianet Group Technologies Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including Section 7.02 (e)-(h), each of the Company, Parent and Merger Sub shall use (and cause its affiliates to use) its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken promptly, all actions, and to do promptly, or cause to be done promptly, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties and all consents, approvals and waivers from third parties reasonably requested by Parent to be obtained in respect of the Company Material Contracts in connection with the Offer, the Merger, this Agreement or the transactions contemplated by this Agreement (it being understood that the failure to receive any such consents, approvals or waivers shall not be a condition to Parent’s and Merger Sub’s obligations hereunder), (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Offer, or the consummation of the Offer or the Merger or the other transactions contemplated by this Agreement, and (iv) the execution and delivery of any additional instruments necessary to consummate the Offer or the Merger and the other transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or to incur any material cost or expense in the performance hereof.
(b) Subject to the terms and conditions set forth in this Agreement, including Section 7.02 (e)-(h), and without limiting the foregoing, the Company and Parent shall (i) promptly, (A) but in no event later than fifteen days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or cause to be taken, the all other actions and to do, or cause to be done, the all other things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby, (iv) promptly inform the other party upon receipt of any material communication from the Antitrust Division of the United States Department of Justice or any other Governmental Entity regarding any of the transactions contemplated by this Agreement and (v) subject to applicable Laws legal limitations and regulations the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of the Company and Parent agrees not to (A) participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate, (B) extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed), or (C) enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby by this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).
(c) In furtherance and not in limitation of the covenants of the parties contained in this Section 7.04, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 7.04 shall limit a party’s right to terminate this Agreement pursuant to Section 9.02 so long as such party has, prior to such termination, complied with its obligations under this Section 7.04.
(d) As soon as reasonably practicable after following the date of this Agreement (hereof, and in any event no later than the Outside Datedate that the Offer is commenced pursuant to Section 1.01(a), including Parent shall: (i) using reasonable best efforts to takeduly incorporate, or cause to be takenin the Commonwealth of Pennsylvania, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, a new wholly owned Subsidiary (“PA Merger Sub”); and (ii) preparing cause Merger Sub to be merged with and filing into PA Merger Sub, with PA Merger Sub surviving the merger as promptly as practicable all documents to effect all necessary applicationsa wholly owned Subsidiary of Parent, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking with the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each effects specified in Section 1929 of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18PBCL.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 3 contracts
Samples: Merger Agreement (Campbell Thomas J), Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the Merger and the other transactions contemplated hereby by this Agreement as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or submitting as promptly as practicable all documents documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable (i) all consents, clearanceswaivers, orders, approvals, permits, rulings, authorizations and clearances necessary, proper or advisable to be obtained from any Governmental Entity and (ii) all material consents, waivers, licenses, orders, registrationsapprovals, authorizationspermits, approvals rulings, authorizations and permits clearances necessary, proper or advisable to be obtained from any third party (other than a Governmental Entity), in each case in order to consummate the Merger and the other transactions contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction Each of any Governmental Entity, each of the Company, Parent DSW and Merger Sub RVI shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyin Section 5.3(a), use its reasonable best efforts to (i) cooperate in all respects with each the other party in connection with any filing or submission applications, notices, filings and other documents and in connection with any investigation investigation, inquiry, request for information or other inquiry, including any proceeding initiated or procedure required by any private partyGovernmental Entity or third party in connection with the consents, waivers, orders, approvals, permits, rulings, authorizations and clearances referenced in Section 5.3(a), (ii) keep promptly inform the other parties apprised party of the status of matters relating to completion any of the transactions matters contemplated hereby and promptly inform hereby, including providing the other parties party with a copy of any written communication (including the initiation or summary of any proceedingoral communications) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other partiesfrom, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each such party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect in each case regarding the Merger and the other transactions contemplated by this Agreement, and (iii) to this Agreement or the Merger)extent practicable, (iv) consult with the other parties in advance of any meeting, conference, meeting or conference call, discussion or communication with, with any such Governmental Entity or, and in connection advance of any material meeting or conference with any proceeding by any private third party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Personthird party, give the other parties party the opportunity to attend and participate in such meetings, meetings and conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If In furtherance and not in limitation of the covenants of the parties contained in this Section 5.3, each of RVI and DSW shall use its reasonable best efforts to (i) resolve any objections are objections, actions or proceedings asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private third party challenging the Merger or the other transactions contemplated by this Agreement, including to contest and resist any administrative or judicial action or proceeding and to have vacated, lifted, reversed or overturned any judgment, injunction or other decree or order, whether temporary, preliminary or permanent, that is in effect and that prevents, materially delays or materially impedes the consummation, or otherwise materially reduces the contemplated benefits, of the Merger and the other transactions contemplated hereby as violative of by this Agreement, and (ii) have repealed, rescinded or made inapplicable any applicable LawLaw which would otherwise prevent, each delay or impede the consummation, or otherwise materially reduce the contemplated benefits of the Company, Parent Merger and Merger Sub the other transactions contemplated by this Agreement.
(d) Each of RVI and DSW and their respective Boards of Directors shall, subject if any “moratorium,” “control share,” “fair price” or other anti-takeover law or regulation becomes applicable to Section 6.18 in this Agreement, the event of Merger or any Transaction Litigationother transactions contemplated hereby, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of ensure that the Merger and the other transactions contemplated hereby by this Agreement may be consummated as promptly as practicable on the terms set forth in contemplated hereby and otherwise to minimize the effect of such law or regulation on this Agreement as soon as reasonably practicable after Agreement, the date of this Agreement (Merger and in any event no later than the Outside Date)other transactions contemplated hereby.
Appears in 3 contracts
Samples: Merger Agreement (DSW Inc.), Merger Agreement (Retail Ventures Inc), Merger Agreement (Retail Ventures Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent and Merger Sub shall use its their respective reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper necessary or advisable desirable under this Agreement and applicable Laws and regulations Applicable Law to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (iiA) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable (B) obtaining and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement, ; provided that the parties hereto understand and (iii) taking agree that the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction best efforts of any party hereto shall not be deemed to include (i) entering into any settlement, undertaking, consent decree, stipulation or agreement, or commencing any litigation, with any Governmental Entity, each of the Company, Parent and Merger Sub shall, Authority in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (ii) divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its, the Subsidiaries’ or any of their respective Affiliates’ businesses, assets or properties, or (iii) permit providing or obtaining any personally identifiable information of (x) any individuals who are Affiliates of Parent or (y) any directors, members, partners, officers or employees of any Affiliates of Parent, other than, in each case, any directors, officers or employees of the Merchant Banking Division of Xxxxxxx Xxxxx & Co, Inc. The Company and Parent agree to execute and deliver such other partiesdocuments, certificates, agreements and other writings and to take such other actions as may be necessary or desirable in order to consummate or implement the other parties’ legal counsel, to review any filing, submission or other communication given transactions contemplated by it to any Governmental Entity or, this Agreement. Each of Parent and the Company shall split equally the payment of all filing fees required in connection with any pending or threatened litigation by any private party, with any other Person filings under the HSR Act (and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to shall make such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby equal payment on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Datethat such filing is made).
Appears in 3 contracts
Samples: Merger Agreement (Rennes Fondation), Merger Agreement (Ebix Inc), Merger Agreement (Ebix Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent and Acquisition Sub, on the one hand, and (without limiting the rights of the Company specifically provided under Section 6.2, Section 6.3, Section 6.4 and Section 6.5) the Company, Parent and Merger Sub on the other hand, shall use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations Law or otherwise to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to, in all cases subject to take, or cause to be taken, the actions necessary to Section 6.2: (i) cause the conditions to Closing the Merger set forth in Article VII to be satisfied, ; (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions or non-actions, waivers, licensesconsents, ordersapprovals, orders and authorizations from Governmental Authorities and make all necessary registrations, authorizations, approvals declarations and permits filings with Governmental Authorities that are necessary to consummate the Merger and the other transactions contemplated by this Agreement, ; and (iii) taking the reasonable steps as may be obtain all necessary or advisable to make all necessary filings and obtain all such appropriate consents, clearances, waivers, licenses, orders, registrations, authorizations, waivers and approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary under any Material Contracts to attend any regulatory meetings, hearings or other proceedings).
(b) To which the extent permissible under applicable Law Company or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other Subsidiaries is a party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or and the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on so as to maintain and preserve the benefits under such Material Contracts following the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary herein, the Company shall not be required to (nor without the prior consent of Parent shall it, or shall it agree to) pay any consent or other similar fee, “profit sharing” or other similar payment or other consideration (including increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the existing terms set forth in this Agreement as soon as reasonably practicable after of any Contract), or the date provision of this Agreement additional security (and in including a guaranty) to obtain the consent, waiver or approval of any event no later than the Outside Date)Person under any Contract.
Appears in 3 contracts
Samples: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Integrated Silicon Solution Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreementhereof, each of the Company, Parent and Merger Sub shall, and Parent and the Company shall cause their respective Subsidiaries to, each use its their reasonable best efforts to to:
(i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby as promptly as reasonably practicable;
(ii) obtain from any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and send any notices, in each case, which are required to be obtained, made or sent by such party or any of their Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; provided, that in connection therewith none of Parent, Sub, the Company or their respective Subsidiaries will be required to make or agree to make any material payment or accept any material conditions or obligations, including amendments to existing conditions and obligations;
(iii) as promptly as practicable, make all necessary filings and notifications, and thereafter make any other required submissions and applications with respect to this Agreement, the Offer and the Merger required under any applicable Laws and regulations statute, law, rule or regulation; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated hereby as soon as reasonably practicable after by, and to fully carry out the date purposes of, this Agreement. The Company and Parent shall cooperate with each other in connection with the making of this Agreement (all such filings, submissions, applications and in any event no later than the Outside Date), including (i) using requests. The Company and Parent shall each use their reasonable best efforts to takefurnish to each other (on an outside counsel basis if appropriate) all information required for any filing, submission, application or cause request to be takenmade pursuant to the rules and regulations of any applicable statute, law, rule or regulation in connection with the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 2 contracts
Samples: Merger Agreement (PARETEUM Corp), Merger Agreement (Ipass Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the CompanyParent, Parent and Merger Sub and the Company shall use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby as soon as reasonably practicable after (including the date of this Agreement (and in any event no later than the Outside DateMerger), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate cause the conditions to the Merger set forth in Article VI that are within their respective control to be satisfied or fulfilled, including by filing as promptly as practicable after the date hereof with the SEC all respects with each other annual, quarterly and current reports required to be filed by it under the Exchange Act for any and all periods ending prior to the Effective Time; (ii) obtain all necessary or appropriate consents, waivers and approvals, and to provide all necessary notices, under any Contracts to which it or any of its Subsidiaries is a party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or and the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on (including the terms set forth Merger) so as to maintain and preserve the benefits under such Contracts following the consummation of the transactions contemplated hereby (including the Merger); (iii) make all necessary registrations, declarations and filings with Governmental Authorities in connection with this Agreement as soon as and the consummation of the transactions contemplated hereby (including the Merger), and obtain all necessary actions or non-actions, waivers, clearances, consents, approvals, orders and authorizations from Governmental Authorities (including under all Antitrust Law) in connection with this Agreement and the consummation of the transactions contemplated hereby (including the Merger); (iv) execute and deliver any additional instruments reasonably practicable after necessary to consummate the date transactions contemplated by, and to fully carry out the purposes of, this Agreement. With respect to clause (ii) above, (x) all fees, costs and expenses to obtain, and satisfy the conditions of the consents to be obtained by the Company hereunder (including, without limitation, the consents of all lessors of Leased Real Property) shall be paid and borne entirely by the Company, and (y) if the lessor, master lessor, sublessor, or licensor under any Lease conditions its grant of a consent (including by threatening to exercise a “recapture” or other termination right) upon, or otherwise requires in response to a notice or consent request regarding the transactions contemplated by this Agreement (including the Merger), the payment of a consent fee, “profit sharing” payment or other consideration (including increased rent payments), or the provision of additional security (including a guaranty), the Company shall be solely responsible for making all such payments and in any event no later than providing all such additional security and the Outside Dateterms thereof shall be subject to Parent’s approval (which approval shall not be unreasonably withheld, delayed or conditioned).
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Market Leader, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws laws and regulations to consummate the Merger and the other transactions contemplated hereby by this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents documentation to effect all necessary applications, notices, petitions, filings filings, tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits, tax rulings and permits authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement, Agreement and (iiiii) taking the all reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such material consents, clearances, waivers, licenses, ordersregistrations, registrationspermits, authorizations, approvals tax rulings, orders and permits approvals. Nothing in this Agreement shall require any of Parent and its Subsidiaries or the Company and its Subsidiaries to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or permit the sale, holding separate or other disposition of, any assets of Parent, the Company or their respective Subsidiaries or the conduct of their business in a specified manner, whether as a condition to obtaining any approval from a Governmental Entity or any other Person or for any other reason, if such sale, holding separate or other disposition or the conduct of their business in a specified manner is not conditioned on the Closing or, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Parent and its Subsidiary (including providing all necessary information the Surviving Corporation and documentary material and providing personnel as necessary its Subsidiaries), taken together, after giving effect to attend any regulatory meetings, hearings or other proceedings)the Merger.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above Subject to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the MergerSection 5.4(a), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If if any objections are asserted with respect to the transactions contemplated hereby under any applicable Regulatory Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Regulatory Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, Company shall use its reasonable best efforts to resolve any such objections or challenges challenge as such Governmental Entity or private party may have to such transactions under such applicable Regulatory Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in by this Agreement as soon as reasonably practicable after the date Agreement. For purposes of this Agreement Agreement, "Regulatory Law" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate (and in any event no later than i) foreign investment or (ii) actions having the Outside Date)purpose or effect of monopolization or restraint of trade or lessening of competition.
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Apco Argentina Inc/New)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.4(c)), each of the CompanyParent, Parent and Merger Sub shall and Parent GP, on the one hand, and the Partnership, on the other hand, will cooperate with the other and use (and will cause each of their respective Subsidiaries to use) its reasonable best efforts to (i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, the things all things, necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate cause the transactions contemplated hereby conditions to the Closing to be satisfied as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)) and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable and fully all documents documentation to effect all necessary applicationsfilings, notifications, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings required or other proceedings).
(b) To the extent permissible recommended filings under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private partyAntitrust Laws), (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and obtain promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)) all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the transactions contemplated hereby, (iii) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) obtain all necessary consents, approvals or waivers from third parties, provided , however , that notwithstanding anything to the contrary in this Agreement, none of Parent, Merger Sub, Parent GP or the Partnership shall be required to sell, divest, dispose of, license, lease, operate, conduct in a specified manner, hold separate or discontinue or restrict or limit, before or after the Closing Date, any assets, liabilities, businesses, licenses, operations, or interest in any assets or businesses, that would, individually or in the aggregate, have a Material Adverse Effect on the business of Parent and its Subsidiaries, taken as a whole or the Partnership and its Subsidiaries, taken as a whole, respectively. For purposes of this Agreement, “ Antitrust Laws ” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
Appears in 2 contracts
Samples: Merger Agreement (MPLX Lp), Merger Agreement (Marathon Petroleum Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable possible after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the all actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits in connection with the transactions contemplated by this Agreement, and (iii) taking the all reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings), and (iv) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and the avoidance of each and every impediment under any antitrust, merger control, competition, trade regulation or other Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental EntityLaw, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from from, any Governmental Entity and of any material communication received from or given in connection with any proceeding by any private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other substantive communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation proceeding by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, shall use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable possible after the date of this Agreement (and in any event no later than the Outside Date).
(d) Notwithstanding the foregoing, the obligations set forth in Section 6.5(a), (b) and (c) shall not apply to any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by or related to this Agreement, which is the subject of Section 6.11.
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this AgreementAgreement and in accordance with applicable Laws, each of the Company, Parent and Merger Sub shall parties to this Agreement will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement to ensure that the conditions set forth in Article VI are satisfied and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)as promptly as practicable, including (i) using obtaining all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all consents, approvals or waivers from, or taking other actions with respect to, third parties necessary or advisable to be obtained or taken in connection with the transactions contemplated by this Agreement; provided, however, that without the prior written consent of MergerCo, the Company and its Subsidiaries may not pay or commit to pay any amount of cash or other consideration, or incur or commit to incur any liability or other obligation, in connection with obtaining such consent, approval or waiver, (iii) subject to first having used reasonable best efforts to takenegotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or cause to be takenother legal proceedings, whether judicial or administrative, challenging this Agreement or the actions necessary to cause consummation of the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed, and (iiiiv) taking the reasonable steps as may be necessary or advisable to make all necessary filings executing and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as delivering any additional instruments necessary to attend any regulatory meetingsconsummate the transactions contemplated hereby, hearings or other proceedings)and to fully carry out the purposes of this Agreement.
(b) To MergerCo and the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, Company will cooperate and consult with each of the Company, Parent and Merger Sub shall, other in connection with the efforts referenced above making of all such filings and any other material actions pursuant to obtain all requisite approvalsthis Section 5.9, clearances and authorizations subject to applicable Law, by permitting counsel for the transactions contemplated herebyother party to review in advance, use its reasonable best efforts to (i) cooperate and consider in all respects with each good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any filing Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or submission and received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted (x) as necessary to comply with contractual arrangements, and (y) as necessary to address good faith legal privilege or confidentiality concerns. The Company shall not file any investigation such document or other inquirytake such action if MergerCo has reasonably objected (and not withdrawn its objection) to the filing of such document or the taking of such action on the grounds that such filing or action would reasonably be expected to either (i) prevent, including any proceeding initiated by any private party, (ii) keep materially delay or materially impede the other parties apprised of the status of matters relating to completion consummation of the transactions contemplated hereby or (ii) cause a condition set forth in Article VI to not be satisfied in a timely manner. The Company shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of MergerCo.
(c) Each of MergerCo and the Company will promptly inform the other parties party upon receipt of any material communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, by this Agreement. If MergerCo or the other parties’ legal counsel, to review any filing, submission Company (or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its their respective Subsidiaries, which appears in any filing made with, Affiliates) receives a request for additional information or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, documentary material from any such Governmental Entity orthat is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with any proceeding the transactions contemplated by any private partythis Agreement unless it so consults with the other party in advance and, with any other Person and (v) to the extent permitted not prohibited by such Governmental Entity or other PersonEntity, give gives the other parties party the opportunity to attend and participate participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with or any Governmental Entity in such meetings, conferences, conference calls, discussions and communications. Notwithstanding connection with the foregoing, the obligations set forth in transactions contemplated by this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18Agreement.
(cd) If Notwithstanding anything herein to the contrary, no party is required to, and the Company may not, without the prior written consent of MergerCo, become subject to, consent or agree to, or otherwise take any objections are asserted action with respect to, any requirement, condition, limitation, understanding, agreement or Order to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates in any manner which, individually or in the aggregate with all other such requirements, conditions, understandings, agreements and Orders could reasonably be expected to have a material adverse impact on the business of the Company and its Subsidiaries, taken as a whole. Notwithstanding anything in this Agreement to the transactions contemplated hereby under contrary, the Company will, upon the request of MergerCo, become subject to, or consent or agree to or otherwise take any applicable Law action with respect to, any requirement, condition, understanding, agreement or if any suit is instituted by any Governmental Entity Order to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any private party challenging any of its Affiliates, so long as such requirement, condition, understanding, agreement or Order is binding on the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 Company only in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of that the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Closing occurs.
Appears in 2 contracts
Samples: Merger Agreement (Theragenics Corp), Merger Agreement (Michas Alexis P)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Applicable Law to consummate the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable (ii) obtaining and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement; provided that the parties hereto understand and agree that in no event shall Parent be required (or the Company, and without Parent’s prior written consent, be permitted) by this Section 8.01 or any other provision of this Agreement (iiiA) taking to enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the reasonable steps as may be necessary transactions contemplated hereby or advisable (B) to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits divest or otherwise hold separate (including providing all necessary information by establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing) with respect to any of their respective Subsidiaries or any of their respective Affiliates’ businesses, assets or properties, except, in the case of either of the foregoing clause (A) or (B), to the extent such action or actions would not reasonably be expected to, individually or in the aggregate, restrict, in any material respect, or otherwise negatively and documentary material materially impact the natural gas (including natural gas liquids) exploration, production and providing personnel sales businesses of the Company and its Subsidiaries, taken as necessary to attend any regulatory meetingsa whole, hearings or other proceedings)the natural gas (including natural gas liquids) exploration, production and sales businesses of Parent and its Subsidiaries, taken as a whole.
(b) To In furtherance and not in limitation of the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Company, Parent and Merger Sub shall, in connection the Company shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with the efforts referenced above respect to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, hereby as promptly as practicable and in any event within 60 days of the date hereof. Each of the Company and Parent shall use its reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other Competition Law and use its reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act or any other Competition Law as soon as practicable. Each of Parent and the Company shall cooperate with one another in (i) cooperate in all respects with each the overall strategic planning for the approach to Governmental Authorities under the HSR Act or any other party in connection with applicable Competition Law, (ii) the making of any filings, including the initial filing or submission under the HSR Act, (iii) the receipt of any necessary approvals and in connection with (iv) the resolution of any investigation or other inquiryinquiry of any such Governmental Authority. Parent, including in consultation with the Company, shall take the lead in communicating with any proceeding initiated Governmental Authority and developing strategy for responding to any investigation or other inquiry by any private partyGovernmental Authority under the HSR Act or other applicable Competition Law. Notwithstanding the foregoing sentence, (ii) keep except as prohibited by Applicable Law, each of Parent and the Company shall promptly notify the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby of, and promptly inform if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other of) any communication (including the initiation of any proceeding) received by such party from substantive communications with any Governmental Entity and Authority, shall consult with each other prior to taking any material communication received from substantive position with respect to the filings under the HSR Act or any private partyother Competition Law in discussions with or filing to be submitted to any Governmental Authority, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) shall permit the other partiesto review and discuss in advance, or and consider in good faith the views of the other parties’ legal counselin connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to review any filing, submission or other communication given by it be submitted to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, Authority with respect to this Agreement filings under the HSR Act or the Merger)any other Competition Law, (iv) consult shall not participate in any meeting or have any substantive communication with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity orAuthority unless it has given the other an opportunity to consult with it in advance and, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonAuthority, shall give the other parties party the opportunity to attend and participate therein, and shall coordinate with the other in preparing and exchanging such meetingsinformation and promptly provide the other party (and its counsel) with copies of all filings, conferencesmaterial correspondence, conference calls, discussions presentations or submissions (and communications. Notwithstanding a summary of any oral presentations) made by such party with any Governmental Authority under the foregoing, the obligations set forth in HSR Act or any other Competition Law relating to this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to Agreement or the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereby.
Appears in 2 contracts
Samples: Merger Agreement (Exxon Mobil Corp), Merger Agreement (Xto Energy Inc)
Reasonable Best Efforts. (a) Subject Prior to the terms Closing, Purchaser and conditions of this Agreement, each of the Company, Parent and Merger Sub Sellers shall use its their respective reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, the all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement including (i) the preparation and applicable Laws filing of all forms, registrations and regulations notices required to be filed to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedAgreement, (ii) preparing and filing as promptly as practicable the satisfaction of the other parties’ conditions to consummating the transactions contemplated by this Agreement, (iii) taking all documents to effect all actions reasonably necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable (and cooperating with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any third party, including any Governmental Entity (which actions shall include furnishing all consentsinformation required under applicable Antitrust Laws and in connection with approvals of or filings with any other Governmental Entity) required to be obtained or made by Purchaser, clearances, waivers, licenses, orders, registrations, authorizations, approvals the Sellers and permits the Companies or any of their respective affiliates in connection with the transactions contemplated by this Agreement or the taking of any action contemplated by this Agreement, and (iiiiv) taking the reasonable steps as may be necessary or advisable to make all necessary filings execution and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as delivery of any additional instruments necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To consummate the extent permissible under applicable Law or any rule, regulation or restriction transactions contemplated by this Agreement and to fully carry out the purposes of any Governmental Entitythis Agreement. Additionally, each of Purchaser, the Company, Parent Sellers and Merger Sub shall, in connection with the efforts referenced above to obtain Companies shall use all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in fulfill all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating conditions precedent to the exchange of information, all of the information relating to such party, Acquisition and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to take any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable action after the date of this Agreement (and that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any event no later than permission, approval or consent from any Governmental Entity necessary to be obtained prior to the Outside Date)Closing.
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Om Group Inc), Asset and Stock Purchase Agreement (Om Group Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent and Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Applicable Law to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable (ii) obtaining and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement, ; provided that the parties hereto understand and (iii) taking agree that the reasonable steps as may best efforts of Parent shall not be necessary deemed to require Parent to, and, without the prior written consent of Parent, the Company shall not, (A) enter into any settlement, undertaking, consent decree, stipulation or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of agreement with any Governmental Entity, each of the Company, Parent and Merger Sub shall, Authority in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyhereby or (B) sell, use divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing), in each case of clauses (A) and (B), (1) with respect to any of Parent’s or its reasonable best efforts Subsidiaries’ businesses, assets or properties or (2) with respect to any of the Company’s or its Subsidiaries’ businesses, assets or properties, unless, in the case of this clause (2) only, such action would not reasonably be expected to be, individually or in the aggregate, adverse in any material respect to the Company and its Subsidiaries, taken as a whole. Each of Parent and the Company shall (i) cooperate in all respects and consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiryfilings, including any proceeding initiated by any private partyallowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties party of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, Governmental Authorities, by promptly providing copies to the other party of any Governmental Entity such written communications and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conferencesubstantive telephone call or conference with Governmental Authorities, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted not prohibited by such a Governmental Entity or other PersonAuthority, give the other parties party the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18in-person meetings with that Governmental Authority.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 2 contracts
Samples: Merger Agreement (NICE Ltd.), Merger Agreement (inContact, Inc.)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its respective reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using its respective reasonable best efforts to take, or cause to be taken, accomplish the actions following: (i) the taking of all acts necessary to cause the conditions to Closing set forth in Article VII to be satisfied, satisfied as promptly as practicable; (ii) preparing and filing as promptly as practicable all documents to effect the obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions or nonactions, waivers, licenses, orders, registrations, authorizations, consents and approvals from Governmental Entities and permits contemplated by this Agreement, the making of all necessary registrations and filings (iiiincluding filings with Governmental Entities) and the taking the reasonable of all steps as may be necessary to obtain an approval or advisable waiver from, or to avoid an action or proceeding by, any Governmental Entity; and (iii) the delivery of required notices to and the obtaining of all necessary consents, approvals or waivers from third parties under any Material Contract or Company Lease or otherwise to the extent related to the Merger; provided that none of the Company, Parent, Holdings or Merger Sub shall be required to make all necessary filings and any payment to any such third parties or concede anything of value to obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To In furtherance and not in limitation of the foregoing:
(i) Each of Parent and the Company shall (A) make or cause to be made all filings required of each of them or any of their respective Subsidiaries or Affiliates under the HSR Act or any other applicable Antitrust Laws with respect to the transactions contemplated hereby as promptly as practicable and, in any event, within ten (10) business days after the date of this Agreement in the case of all filings required under the HSR Act and within thirty (30) days in the case of all other filings required by other Antitrust Laws, (B) comply at the earliest practicable date with any request under the HSR Act or other Antitrust Laws for additional information, documents, or other materials received by each of them or any of their respective Subsidiaries from the Federal Trade Commission (“FTC”), the Antitrust Division of the Department of Justice (the “Antitrust Division”) or any other Governmental Entity in respect of such filings or such transactions, and (C) cooperate with each other in connection with any such filing (including, to the extent permissible permitted by applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any of the FTC, the Antitrust Division or other Governmental Entity under any Antitrust Laws with respect to any such filing or any such transaction. Each such party shall furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other by this Agreement. Each such party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and shall promptly inform the other parties hereto of any oral communication (including the initiation with, and provide copies of any proceeding) received by such party from written communications with, any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any such filings or any such transaction. No party hereto shall independently participate in any substantive meeting or discussion, either in person or by telephone, with a Governmental Entity in respect of the transactions contemplated herebyany such filings, (iii) permit the other partiesinvestigation, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, inquiry without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with giving the other parties in advance hereto prior notice of any meetingthe meeting and, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonEntity, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communicationsand/or participate. Notwithstanding the foregoingSubject to applicable Law, the obligations set forth parties hereto will consult and cooperate with one another in this Section 6.5(b) shall not apply connection with any analysis, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to any Transaction Litigation, which is proceedings under the subject of Section 6.18HSR Act or other Antitrust Laws.
(cii) If Each of Parent and the Company shall use its respective reasonable best efforts to resolve such objections, if any, as may be asserted by any objections are asserted Governmental Entity with respect to the transactions contemplated hereby by this Agreement under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any applicable Law other Laws that are designed to prohibit, restrict or if any suit is instituted by any Governmental Entity regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”). Each of Parent and the Company shall use its respective reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement.
(iii) Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Holdings, Merger Sub or any private party challenging of their Subsidiaries shall be required to, and the Company may not, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, or otherwise take any of the transactions contemplated hereby as violative action with respect to, any requirement, condition, limitation, understanding, agreement or order to (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any applicable Lawmaterial assets, each business or portion of business of the Company, Parent and the Surviving Corporation, Parent, Holdings, Merger Sub shallor any of their respective Subsidiaries, (ii) materially conduct, restrict, operate, invest or otherwise materially change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Holdings, Merger Sub or any of their respective Subsidiaries in any adverse manner, or (iii) impose any material restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Holdings, Merger Sub or any of their respective Subsidiaries; provided that, if requested by Parent, the Company will become subject to Section 6.18 to, consent to, or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company in the event the Closing occurs.
(iv) Each of any Transaction Litigation, Parent and the Company shall cooperate and use its their respective reasonable best efforts to resolve obtain the Required Governmental Authorizations and all other consents, approvals and agreements of, and to give and make all notices and filings with, any such objections or challenges as such Governmental Entity or private party may have necessary to such transactions under such applicable Law so as to permit consummation of consummate and make effective the Merger and the other transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after hereby, including: (i) not later than thirty (30) days following the date of this Agreement Agreement, Parent filing, or causing to be filed, “Form A Statements” or similar change of control applications, with the insurance commissioners or departments of health or other Governmental Entities in each jurisdiction where required by applicable Law seeking approval of Parent’s acquisition of control of each of the Insurance Subsidiaries which results from the Merger; (ii) as promptly as practicable, Parent filing, or causing to be filed, any pre-acquisition notifications on “Form E” or similar market share notifications to be filed in each jurisdiction where required by applicable Laws with respect to the Merger and in any event no later than the Outside Date)other transactions contemplated hereby. Parent and the Company shall cooperate and use their respective reasonable best efforts to obtain all other approvals and consents to the transactions contemplated by this Agreement, including the matters set forth on Section 3.01(d) of the Company Disclosure Schedule and Section 3.02(b) of the Parent Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Fortegra Financial Corp), Merger Agreement (Tiptree Financial Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent shall reasonably cooperate with one another and Merger Sub shall use its (and cause their Subsidiaries to use) their reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Applicable Law to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as reasonably practicable with any Governmental Authority or other Third Party all documents documentation to effect all necessary applicationsFilings and (ii) obtaining and maintaining all approvals, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement.
(b) Notwithstanding Section 9.01(a), no Party shall be required (and neither the Company nor any of its Subsidiaries shall be permitted, without Parent’s prior written consent), in order to obtain or maintain any approvals, consents, registrations, permits, authorizations or other confirmations required to be obtained from any Governmental Authority, in each case, that are necessary to consummate the transactions contemplated by this Agreement, and to (iiii) taking the reasonable steps as may be necessary divest or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits otherwise hold separate (including providing all necessary information and documentary material and providing personnel as necessary by establishing a trust or otherwise) or take (or cause to attend be taken) or omit (or cause to be omitted) any regulatory meetingsother action with respect to, hearings any of the businesses, assets or other proceedings).
(b) To properties of the extent permissible under applicable Law Parent, Company or any ruleof their Subsidiaries, regulation (ii) enter into any settlement, undertaking, consent decree, stipulation or restriction of agreement with any Governmental Entity, each of the Company, Parent and Merger Sub shall, Authority in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, (iii) litigate, challenge or take any action with respect to, any Proceeding by any Governmental Authority or (iv) agree to do any of the foregoing (any of the foregoing actions, a “Burdensome Condition”).
(c) To the extent permitted by Applicable Law, and subject to Section 9.01(b), each Party shall use its reasonable best efforts to (i) cooperate in all reasonable respects with each the other party Parties in connection with any filing or submission Filing and in connection with any investigation or other inquiry, including any proceeding Proceeding initiated by any a private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Parties of any Filing or communication (including the initiation of any proceeding) received by such party from from, or intended to be given to, any Governmental Entity Authority and of any material communication received from or intended to be given in connection with any Proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, (iii) prior to submitting any Filing, substantive written communication, correspondence or other information or response to any Governmental Authority (or members of the staff of any Governmental Authority) or in connection with any Proceeding by a private party, permit the other partiesParties and their legal counsel a reasonable opportunity to review in advance, or to the extent reasonably practicable under the circumstances, and consider in good faith the comments of the other parties’ legal counselParty in connection with, any such Filing, communication or inquiry, (iv) furnish each other Party with a copy of any Filing, communication or, if in written form, inquiry, it or any of its Affiliates makes to review any filing, submission or other communication given by it to receives from any Governmental Entity Authority or in connection with any Proceeding by a private party, in each case regarding any of the transactions contemplated hereby, and (v) consult with the other Parties in advance of any meeting or conference with any Governmental Authority or, in connection with any pending or threatened litigation Proceeding by any a private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyPerson, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Personreasonably practicable, give the other parties Parties the opportunity to attend and participate in such meetings, meetings and conferences, conference callsin each case, discussions and communications. Notwithstanding to the foregoingextent any such action is necessary, the obligations set forth in this Section 6.5(b) shall not apply proper or advisable to obtain or maintain any Transaction Litigationapproval, which is the subject of Section 6.18.
(c) If consent, registration, permit, authorization or other confirmation from any objections are asserted with respect Governmental Authority to consummate the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sonic Financial Corp), Merger Agreement (Speedway Motorsports Inc)
Reasonable Best Efforts. (a) Subject Prior to the terms and conditions of this AgreementClosing, each of the CompanyParent, Parent and Merger Sub and the Company shall use its their respective reasonable best efforts to (x) take, or cause to be taken, the actions actions, and to (y) do, or cause to be done, the things necessary, proper or advisable under this Agreement and any applicable Laws to consummate and regulations make effective the Transactions as promptly as practicable, including using reasonable best efforts in (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated hereby as soon as reasonably practicable Transactions, (ii) obtaining (and cooperating with each other in obtaining) any consent, authorization, Order or approval of, or any exemption by, any third party, including any Governmental Entity (which actions shall include furnishing all information required under the HSR Act and in connection with approvals of or filings with any other Governmental Entity) required to be obtained or made by Parent, Merger Sub, the Company or any of their respective Subsidiaries in connection with the Transactions and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement (it being understood that nothing in this Section 6.3 shall require Parent to (A) consent to any action or omission that would be inconsistent with Section 5.1 or Section 6.3(g) or (B) agree to amend or waive any provision of this Agreement). Additionally, each of Parent and the Company shall use reasonable best efforts not to take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Entity necessary to be obtained prior to Closing. Table of Contents
(b) Prior to the Closing, each party shall promptly consult with the other parties to this Agreement with respect to, provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of), all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the Transactions. Each party to this Agreement shall promptly inform the other parties to this Agreement of any communication from any Governmental Entity regarding any of the Transactions. If any party to this Agreement or any Affiliate of such parties receives a request for additional information or documentary material from any Governmental Entity with respect to the Transactions, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this Agreement, an appropriate response in compliance with such request. To the extent that transfers of any permits issued by any Governmental Entity are required as a result of the execution of this Agreement or the consummation of the Transactions, the Company shall use its reasonable best efforts to effect such transfers.
(c) The Company and Parent shall use reasonable best efforts to file, as promptly as practicable, but in any event no later than fifteen Business Days after the date of this Agreement, notifications under the HSR Act and shall use reasonable best efforts to respond, as promptly as practicable, to any inquiries received from the Federal Trade Commission and the Antitrust Division of the Department of Justice for additional information or documentation and to respond, as promptly as practicable, to all inquiries and requests received from any state Attorney General or other Governmental Entity in connection with antitrust matters.
(d) Each of Parent and the Company shall use reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the HSR Act, the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign or supranational Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”). Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.3(d) shall limit the right of any party hereto to terminate this Agreement pursuant to Section 8.1, so long as such party hereto has, up to the time of termination, complied in all material respects with its obligations under this Section 6.3(d). Each of Parent and the Company shall use reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(e) The parties shall use their respective reasonable best efforts to avoid or eliminate each and every impediment under any Antitrust Laws so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including to avoid Parent or its Subsidiaries from being disqualified or otherwise precluded from providing certain goods or services to the United States Department of Defense as a result of an Organizational Conflict of Interest issue. Those efforts shall include using reasonable best efforts, subject to Section 6.3(g), in (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses, product lines, assets or operations of the Company and its Subsidiaries, unless such sale, divestiture or disposition would reasonably be expected to have a Material Adverse Effect, (ii) otherwise taking or committing to take actions that after the Closing Date would limit Parent’s or its Subsidiaries’ ability to retain one or more of the businesses, product lines, assets or operations of the Company and its Subsidiaries, unless such action would reasonably be expected to have a Material Adverse Effect and (iii) cooperating to satisfy Section 7.2(f), including agreeing to the divestiture or other transfer or disposition of contracts listed on Section 6.3(e) of the Company Disclosure Letter (the “Specified Contracts”), in each case in connection with using reasonable best efforts to takeavoid the entry of, or cause to effect the dissolution of, any preliminary or permanent injunction, in any Action under any Antitrust Laws, which would otherwise have the effect of preventing the Closing or to avoid such disqualification or preclusion; provided, however, that any such action shall be takenconditioned upon the consummation of the Merger. Notwithstanding the foregoing, if on or after March 1, 2008, the Company determines in good faith that it is necessary or advisable to divest or otherwise transfer or dispose of the Specified Contracts in order to satisfy Section 7.2(f), then the Company shall be entitled to take all legally permissible actions necessary to cause divest or otherwise transfer or dispose of the conditions Specified Contracts to Closing set forth the extent such actions would not reasonably be expected to result in Article VII an Organizational Conflict of Interest issue for, or otherwise impose any material liability or obligation on, Parent or the Company or their respective Subsidiaries. Table of Contents (f) (i) The Company and Parent shall cooperate with respect to be satisfiedthe prompt preparation and submission of a joint filing and any requested supplemental information (collectively, the “Joint Filing”) to the Committee on Foreign Investment in the United States (including any successor or replacement, “CFIUS”) under Exon-Fxxxxx with regard to the Transactions, (ii) preparing Parent shall take primary responsibility for preparation and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, submission of the Joint Filing and (iii) taking the reasonable steps as may be necessary or advisable Company shall promptly provide to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing Parent all necessary information and documentary material otherwise promptly assist Parent in order for Parent to complete preparation and providing personnel as necessary submission of the Joint Filing, to attend respond to any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law inquiries from CFIUS or any rule, regulation or restriction of any other interested Governmental Entity, each of the Company, Parent Entity and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep secure the other parties apprised approval of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any CFIUS of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 2 contracts
Samples: Merger Agreement (Bae Systems PLC), Merger Agreement (BAE Systems, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, Rubicon Project and Telaria will cooperate with each of the Company, Parent other and Merger Sub shall use its (and will cause their respective Subsidiaries to use) their respective reasonable best efforts to take, or cause to be taken, the actions and to do, or cause to be done, the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing the Merger set forth in Article VII to be satisfiedsatisfied as promptly as reasonably practicable, including using all reasonable best efforts to accomplish the following as promptly as reasonably practicable: (i) the obtaining of all actions or non-actions, consents, approvals, registrations, waivers, permits, authorizations, orders, expirations or terminations of waiting periods and other confirmations from any Governmental Entity or other Person that are or may become necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (ii) preparing the preparation and filing as promptly as practicable making of all documents to effect all necessary applicationsregistrations, filings, forms, notices, petitions, filings statements, submissions of information, applications and other documents (including filings with Governmental Entities) that are or may become necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (iii) the taking of all steps as may be necessary, proper or advisable to obtain an approval from, or to avoid an Action by, any Governmental Entity or other Person in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (iv) the defending of any lawsuits or other Actions, whether judicial or administrative, challenging this Agreement or that would otherwise prevent or delay the consummation of the transactions contemplated by this Agreement, including the Merger, performed or consummated by each party in accordance with the terms of this Agreement, including seeking to have any stay, temporary restraining order or injunction entered by any court or other Governmental Entity vacated or reversed, and (v) the execution and delivery of any additional instruments that are or may become reasonably necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including the Merger, and to obtain carry out fully the purposes of this Agreement. Each of Rubicon Project and Telaria shall, in consultation and cooperation with the other and as promptly as practicable reasonably practicable, but in no event later than ten (10) Business Days from the date of this Agreement, make its respective filing under the HSR Act and any other applications and filings as reasonably determined by Rubicon Project and Telaria under other applicable Antitrust Laws with respect to the transactions contemplated by this Agreement, as promptly as practicable, but in no event later than as required by Applicable Law. Neither Rubicon Project nor Telaria will withdraw any such filings or applications without the prior written consent of the other party.
(b) In furtherance of the foregoing Section 6.3(a), the parties shall use reasonable best efforts to, and shall cooperate in good faith with one another to, identify any third party consents (or notices) under any Contracts that are necessary or desirable for the consummation of the Merger. Each of the parties shall use reasonable best efforts to obtain any such third-party consent (or deliver any such notices) in the event that the parties mutually agree to seek such consent; provided, however, without the prior written consent of the other party, neither Rubicon Project nor Telaria, nor any of their respective Subsidiaries or Affiliates, will grant or offer to grant any material accommodation or concession (financial or otherwise), or make any material payment, to any third party in connection with seeking or obtaining any such contractual consent. In addition, in connection with and without limiting the efforts referenced in Section 6.3(a), the parties shall jointly develop, and each of the parties shall consult and cooperate in all consentsrespects with one another, clearancesand consider in good faith the views of one another, waiversin connection with the form and content of any analyses, licensesappearances, orderspresentations, registrationsmemoranda, authorizationsbriefs, approvals arguments, opinions and permits proposals made or submitted by or on behalf of any party, hereto in connection with proceedings under or relating to any Antitrust Law prior to their submission. Each of Rubicon Project and Telaria shall (i) furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any governmental filings, submissions or other documents, (ii) promptly inform the other of any such filing, submission or other document and of any communication with or from any Governmental Entity or any official, representative or staff thereof regarding the transactions contemplated by this Agreement, and (iii) taking permit the reasonable steps as may be necessary or advisable other to make all necessary filings review and obtain all such consentsdiscuss in advance, clearancesand consider in good faith the views, waiversand secure the participation, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing such filing, submission, document or submission communication and (iii) cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental Entity or any official, representative or staff thereof or in connection with any investigation or other inquiry, including any proceeding Action initiated by any a Governmental Entity or private party, (ii) keep including promptly notifying the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties party of any communication (including the initiation of such investigation, inquiry or Action, and consulting in advance before making any proceeding) received by such party from any presentations or submissions to a Governmental Entity and or any material communication received from any private partyofficial, in each caserepresentative or staff thereof, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending Action initiated by a private party, to any other Person. In addition, each of Rubicon Project and Telaria shall promptly inform and consult with the other in advance of any meeting, conference or threatened litigation communication with any Governmental Entity or any official, representative or staff thereof, or, in connection with any Action by any a private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyPerson, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted not prohibited by such Applicable Law or by the applicable Governmental Entity or other Person, give not participate or attend any meeting or conference, or engage in any communication, with any Governmental Entity or any official, representative or staff thereof or such other Person in respect of the transactions contemplated by this Agreement without the other parties party unless it reasonably consults with the other party in advance and gives the other party a reasonable opportunity to attend and participate therein, and in the event one party is prohibited from, or unable to participate, attend or engage in, any such meetings, conferencesmeeting, conference callsor communication, discussions keep such party apprised with respect thereto. Each party shall furnish to the other copies of all filings, submissions, correspondence and communications. Notwithstanding communications between it and its affiliates and their respective Representatives, on the foregoingone hand, and any Governmental Entity or any official, representative or staff thereof (or any other Person in connection with any Action initiated by a private party), on the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigationother hand, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law by this Agreement. Each party may, as it deems advisable and necessary, reasonably designate material provided to the other party as “Outside Counsel Only Material” and also may reasonably redact the material as necessary to (A) remove personally or if any suit is instituted by any Governmental Entity competitively sensitive information, (B) remove references concerning the valuation of a party and its Subsidiaries conducted in connection with the approval and adoption of this Agreement and the negotiations and investigations leading thereto, (C) comply with contractual arrangements, (D) prevent the loss of a legal privilege or any private party challenging any (E) comply with Applicable Law.
(c) Each of the transactions contemplated hereby as violative parties agrees that, between the date of any applicable Law, each this Agreement and the earlier of the CompanyEffective Time and the termination of this Agreement in accordance with Section 8.1, Parent it shall not, and Merger Sub shall ensure that none of its Subsidiaries or controlled Affiliates shall, subject consummate, enter into any agreement providing for, or announce, any investment, acquisition, divestiture or other business combination (i) that would reasonably be expected to Section 6.18 in materially delay or prevent the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in by this Agreement as soon as reasonably practicable after or (ii) involving any Person or business competitive with the date businesses of this Agreement (the other party and in any event no later than the Outside Date)its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Rubicon Project, Inc.), Merger Agreement (Telaria, Inc.)
Reasonable Best Efforts. (a) Subject Prior to the terms and conditions of this AgreementClosing, each of the CompanyParent, Parent and Merger Sub and the Company shall use its their respective reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and any applicable Laws to consummate and regulations make effective in the most expeditious manner possible the Transactions including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions Transactions, (ii) the satisfaction of the other parties’ conditions to consummating the Transactions, (iii) taking all reasonable actions necessary to obtain (and cooperation with each other in obtaining) any consent, authorization, Order or approval of, or any exemption by, any third party, including any Governmental Entity (which actions shall include furnishing all information required under the HSR Act and in connection with approvals of or filings with any Governmental Entity responsible for or having jurisdiction over antitrust, competition, trade regulation, foreign investment and/or national security or defense matters) required to be obtained or made by Parent, Merger Sub, the Company or any of their respective Subsidiaries in connection with the Transactions or the taking of any action contemplated hereby as soon as reasonably practicable by this Agreement, and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. Additionally, each of Parent and the Company shall use all reasonable best efforts to fulfill all conditions precedent to the Merger and shall not take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any such Governmental Entity necessary to be obtained prior to Closing.
(b) Parent and the Company shall each keep the other apprised of the status of matters relating to the completion of the Transactions and work cooperatively in connection with obtaining all required consents, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity, including by working cooperatively in connection with any sales, divestitures or dispositions of assets or businesses if and to the extent undertaken pursuant to the provisions of this Section 6.3. In that regard, prior to the Closing, each party shall promptly consult with the other parties to this Agreement with respect to, provide any necessary information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of), all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the Transactions. Each party to this Agreement shall promptly inform the other parties to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of material oral communications, advise the other party orally of) any communication from any Governmental Entity regarding any of the Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written (or any material proposed oral) communication with any such Governmental Entity. If any party to this Agreement or any Representative of such parties receives a request for additional information or documentary material from any Governmental Entity with respect to the Transactions, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this Agreement, an appropriate response in compliance with such request. Neither party shall participate in any meeting with any Governmental Entity in connection with this Agreement and the Transactions (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other party in advance and to the extent permitted by such Governmental Entity gives the other party the opportunity to attend and participate thereat. Each party shall furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity with respect to this Agreement and the Merger, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section as “outside counsel/corporate in-house antitrust counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and will not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel; provided, however, that materials provided pursuant to this Section 6.3(b) may be redacted (i) to remove references concerning the valuation of the Company and the Merger, (ii) as necessary to comply with contractual arrangements, and (iii) as necessary to address reasonable privilege concerns. To the extent that transfers of any permits issued by any Governmental Entity are required as a result of the execution of this Agreement or the consummation of the Transactions, the parties hereto shall use reasonable best efforts to effect such transfers.
(c) The Company and Parent shall use reasonable best efforts to file, as promptly as practicable, but in any event no later than fifteen Business Days after the date of this Agreement, notifications under the HSR Act, and the Company and Parent shall use reasonable best efforts to file, as promptly as practicable, any other filings and/or notifications under applicable Antitrust Laws. In the event that the parties receive a request for information or documentary materials following the HSR Act filing (a “Second Request”) and/or the Transactions are subject to “Second Phase” review following any filing, notice, petition, statement, registration, submission of information, application or similar filing required by any other Antitrust Law or by any Governmental Entity responsible for or having jurisdiction over antitrust, competition, trade regulation, foreign investment and/or national security or defense matters (a “Second Phase Information Request”), the parties will use their respective reasonable best efforts to respond to such Second Request and/or Second Phase Information Request, as applicable, as promptly as possible or as otherwise instructed by Parent pursuant to Section 6.3(f) and counsel for both parties will closely cooperate during the entirety of any such Second Request review process and/or Second Phase Information Request process, as the case may be.
(d) Each of Parent and the Company shall use all reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign or supranational Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or that provide for review of foreign investment and/or national security or defense matters (collectively, “Antitrust Laws”). In connection therewith, if any Action is instituted (or threatened to be instituted) challenging any of the Transactions as violative of any Antitrust Laws, each of Parent and the Company shall cooperate and use all reasonable best efforts to vigorously contest and resist any such Action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger or any other Transactions, including by vigorously pursuing all available avenues of administrative and judicial appeal. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.3(d) shall limit the right of any party hereto to terminate this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(ii), so long as such party hereto has, up to the time of termination, complied in all material respects with its obligations under this Section 6.3(d). Each of Parent and the Company shall use all reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(e) The parties shall take all actions necessary to avoid or eliminate each and every impediment under any Antitrust Laws so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Outside Date), including (i) using reasonable best efforts proposing, negotiating, committing to takeand effecting, by consent decree, hold separate order, or cause to be takenotherwise, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedsale, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applicationsdivestiture or disposition of such businesses, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary product lines or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each assets of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances their respective Subsidiaries and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep otherwise taking or committing to take actions that after the other parties apprised Closing Date would limit Parent’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, one or more of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private partybusinesses, in each case, in connection with any pending product lines or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each assets of the Company, Parent and Merger Sub shalltheir respective Subsidiaries, subject in each case as may be required in order to Section 6.18 avoid the entry of, or to effect the dissolution of, any preliminary or permanent injunction, in any Action under any Antitrust Laws, which would otherwise have the event effect of preventing the Closing, and in that regard Parent and, if requested by Parent, the Company shall (but if not so requested by Parent shall not) agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any Transaction Litigationaction that limits its freedom of action with respect to, use its reasonable best efforts or Parent’s, the Company’s or their respective Subsidiaries’ ability to resolve retain, any of the businesses, product lines or assets of the Company, Parent or any of their respective Subsidiaries; provided, however, that any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit action shall be conditioned upon the consummation of the transactions contemplated hereby on Merger, and notwithstanding anything to the terms contrary set forth in this Agreement Agreement, Parent shall not be required to take, or agree or commit to take, any such action, or agree or commit to, or effect, any such other matter, described in clauses (i) or (ii) above that, in the reasonable judgment of Parent, would constitute or reasonably be expected to result in the sale, divestiture or disposal of, or the holding separate of or direct or indirect operational or ownership restrictions on, businesses, product lines or assets of the Company, Parent or their respective Subsidiaries having or generating revenues (including for both Parent and its Subsidiaries and the Company and its Subsidiaries) for the fiscal year ended December 31, 2010 in excess of $900 million in the aggregate (an “Unacceptable Condition”), for the sake of clarity, it being understood that any revenues of the Company from the Aero Engine Controls joint venture, as soon as reasonably practicable after constituted on the date hereof, shall be excluded for purposes of this Agreement calculation if the Company’s interest in such joint venture is sold pursuant to a contractual obligation of the Company existing as of the date hereof.
(f) Notwithstanding anything to the contrary contained herein, the parties agree that it is Parent’s sole right to devise the strategy for all filings, notifications, submissions and communications in connection with any event no later than the Outside Date)filing, notice, petition, statement, registration, submission of information, application or similar filing subject to this Section 6.3.
Appears in 2 contracts
Samples: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Reasonable Best Efforts. (a) Subject to Each party hereto shall cooperate with the terms other party and conditions of this Agreement, each of the Company, Parent and Merger Sub shall use its respective reasonable best efforts to promptly take, or cause to be taken, the actions all actions, and to do, or cause to be done, the things all things, necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the transactions and perform the covenants contemplated by this Agreement.
(b) Each of Purchaser, New Charter and the Company will cooperate and consult with the other and use reasonable best efforts to prepare and file all documents necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents documents, and to obtain as promptly as practicable all necessary permits, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits authorizations of, or any exemption by, all Governmental Entities, and expiration or termination of any applicable waiting periods, necessary or advisable to consummate the transactions contemplated by this Agreement, and (iii) taking to perform the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consentscovenants contemplated by this Agreement, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, it being agreed that each of the CompanyCompany and Purchaser shall make or file any such applications, Parent and Merger Sub shallnotices, petitions or filings required to be made by it with Governmental Entities in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyby this Agreement as promptly as practicable following the date of this Agreement. Each party shall execute and deliver after the Closing such further certificates, agreements and other documents and take such other actions as the other party may reasonably request to consummate or implement such transactions or to evidence such events or matters. In particular, each party will use its reasonable best efforts to (i) promptly obtain, and will cooperate in all respects with each as may reasonably be requested by the other party and use its reasonable best efforts to help the other party promptly obtain or submit, as the case may be, as promptly as practicable, the approvals and authorizations of, filings and registrations with, and notifications to, or expiration or termination of any applicable waiting period, under the HSR Act or any applicable antitrust, merger or competition law for Purchaser to be able to acquire the Purchased Shares (“HSR Clearance”). Notwithstanding any covenants of the parties set forth herein, none of the parties hereto will be required to take any action requiring, or enter into any settlement, undertaking, condition, consent decree, stipulation or other agreement with any Governmental Entity that requires such party or any of its Subsidiaries or Affiliates to (x) hold separate (in trust or otherwise), divest itself or otherwise rearrange the composition of any assets, businesses or interests of such party or any of its Affiliates or imposes any limitations on such person’s freedom of action with respect to future acquisitions of assets or with respect to any existing or future business or activities or on the enjoyment of the full rights of ownership, possession and use of any asset now owned or hereafter acquired by any such person (including any securities of Purchaser or of the Company and the voting and other rights related to ownership thereof), (y) agree to any other conditions or requirements or to take any other actions that are adverse or burdensome or would reasonably be expected to adversely affect such person, in order to satisfy any objection of any Governmental Entity or any other person or (z) incur or be required to bear any financial obligation imposed or required by any Governmental Entity that, in the case of each of clauses (x), (y) and (z), would have or would reasonably be expected to have a material adverse effect on Purchaser; provided, that in the event any Governmental Entity seeks to impose or require the taking of any of the actions set forth in clauses (x), (y) or (z) above, then the parties agree to use their respective reasonable best efforts and to negotiate in good faith to reach a compromise or settlement with such Governmental Entity which satisfies any objection of any Governmental Entity but minimizes, to the extent practicable, the strategic, economic and other effects of such action, compromise or settlement upon the Purchaser and its Subsidiaries and Affiliates. Each of Purchaser and the Company will have the right to review in advance, and to the extent practicable each will consult with the other, in each case subject to applicable Laws relating to the exchange of information, with respect to all the information relating to the other party, and any of their respective Affiliates, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with any filing or submission the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) as promptly as practicable. Each party hereto agrees to keep the other parties party apprised of the status of matters relating to completion of the transactions contemplated hereby hereby. Purchaser, New Charter and the Company shall promptly inform furnish each other, to the extent permitted by applicable Laws, with copies of written communications received by them or their Affiliates from, or delivered by any of the foregoing to, any Governmental Entity in respect of the transactions contemplated by this Agreement.
(c) Each party shall give the other parties hereto prompt written notice upon becoming aware of any communication Action commenced or, to the knowledge of such party, to which such party is or may become a party (including any such Claim in the initiation right of any proceedingsuch party) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending (x) relating to or threatened litigation regarding any of involving this Agreement or the transactions contemplated hereby, or (iiiy) permit seeking to enjoin, restrain, restrict, limit or prohibit the other parties, transactions contemplated hereby or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shallrights, without limitation, have privileges or preferences to which the right to review in advance, subject to applicable Laws relating to Purchaser is entitled as the exchange of information, all owner of the information relating to Purchased Shares. The party giving such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, notice shall give the other parties hereto the opportunity to attend and participate in such meetings, conferences, conference calls, discussions (but not control) the defense and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative settlement of any applicable Lawsuch Claims and such party agrees to use, each of the Companyand to cause its Affiliates, Parent directors and Merger Sub shallofficers to use, subject to Section 6.18 in the event of any Transaction Litigation, use its commercially reasonable best efforts to resolve defend or contest any such objections or challenges Claim. The parties receiving such notice will cooperate with other party hereto in its defense of such Claims as such Governmental Entity or private party it may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)request.
Appears in 2 contracts
Samples: Investment Agreement (Charter Communications, Inc. /Mo/), Investment Agreement (Liberty Broadband Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this AgreementAgreement and subject to Sections 7.2(b), 7.2(c) and 7.2(d), each of the Company, Parent Party will cooperate with each other and Merger Sub use (and shall use cause their respective Subsidiaries and Affiliates to use) its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Law to consummate the transactions contemplated hereby Offer, the Merger and the other Transactions as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing filing, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, registrations, approvals, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Offer, the Merger or any of the other Transactions and (ii) taking all steps as may be necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, but subject to Sections 7.2(b), 7.2(c) and 7.2(d), each Party agrees to make appropriate filings under any applicable Antitrust Laws, including, but not limited to, a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable, and to supply as promptly as practicable and advisable any additional information and documentary material that may be requested by any Governmental Entity pursuant to any applicable Antitrust Law, including, but not limited to, the HSR Act and to take all other actions necessary to cause the expiration or termination of any applicable waiting periods and to obtain any other required consents, clearances, registrations, approvals, and authorizations as soon as practicable. Subject to Sections 7.2(b), 7.2(c) and 7.2(d), neither Parent nor Company shall take or permit any of its Subsidiaries or Affiliates to take any action that would reasonably be expected to prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement.
(b) Subject to Section 7.2(c) and Section 7.2(d), applicable Law and all applicable privileges (including the attorney-client privilege) and except as prohibited by any Governmental Entity, each of Parent and the Company shall, in connection with the efforts referenced in Section 7.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances permits, and authorizations for the transactions contemplated herebyTransactions under the HSR Act or any other Antitrust Law, use its reasonable best efforts to (i) cooperate in all respects and consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions; (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Party of any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity Entity, by promptly providing copies to the other Party of any such written communications, and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, Transactions; and (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right Party to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, substantive telephone call or conference call, discussion or communication with, the DOJ, the FTC or any such other Governmental Entity Entity, or, in connection with any proceeding by any a private party, with any other Person Person, and (v) to the extent permitted not prohibited by such the DOJ, the FTC or any other applicable Governmental Entity or other Person, give the other parties Party the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding any in-person meetings with the foregoingDOJ, the obligations set forth in this Section 6.5(bFTC or any other Governmental Entity or other Person; provided, however, that materials required to be provided pursuant to clauses (i) shall not apply and (ii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any Transaction Litigationof their respective Subsidiaries, which is the subject of Section 6.18(B) as necessary to comply with contractual arrangements, and (C) as necessary to address reasonable privilege or confidentiality concerns.
(c) If In furtherance and not in limitation of the covenants contained in Section 7.2(a) and Section 7.2(b), the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned any objections are decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Outside Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated hereby under by this Agreement by the FTC, the DOJ or any other applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any party.
(d) In furtherance and not in limitation of the transactions contemplated hereby as violative of any applicable Lawcovenants contained in Section 7.2(a) and Section 7.2(b), each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, Parties shall use its their reasonable best efforts to resolve avoid or eliminate each and every impediment under any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Antitrust Law so as to permit consummation of enable the transactions contemplated hereby on the terms set forth in this Agreement Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event no later than the Outside Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such businesses, product lines or assets of Parent, the Company and their respective Subsidiaries and (y) otherwise taking or committing to take actions or accept conditions that after the Closing Date would limit Parent’s, the Company’s and their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, one or more of the businesses, product lines or assets of Parent, the Company and their respective Subsidiaries, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, which would otherwise have the effect of preventing or materially delaying the Closing. Parent and, if requested by Parent, the Company shall agree to divest, sell, dispose of, hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or Parent or the Parent Subsidiaries ability to retain, any of the businesses, product lines or assets of Parent, the Company or any of their respective Subsidiaries; provided that any such action is conditioned upon the consummation of the Merger. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, (A) neither Parent nor any Parent Subsidiary shall be required to propose, negotiate, commit to, effect, or accept any of the actions specified in this Section 7.2(d) if such actions would reasonably be expected to have, individually or in the aggregate, a material and adverse effect on the business, product lines, or assets of the Company and the Company Subsidiaries, taken as a whole, and (B) neither Parent nor any Parent Subsidiary shall be required to propose, negotiate, commit to, effect, or accept any obligation to, divest, dispose of or hold separate any assets, product lines or businesses of Parent or any of its Subsidiaries if such divestitures, dispositions or holding separate requirements would, individually or in the aggregate, result in a divestiture, disposition or holding separate of assets, product lines or business accounting for five percent (5%) or more of the consolidated gross revenues of the Parent and its Subsidiaries during the last completed fiscal year period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (On Semiconductor Corp), Agreement and Plan of Merger (Fairchild Semiconductor International Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws laws and regulations to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including the Debt Offer. Newco and the Company will use their reasonable best efforts and cooperate with one another (i) using reasonable best efforts to take, or cause in promptly determining whether any filings are required to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all made or consents, clearancesapprovals, waivers, licenses, orderspermits or authorizations are required to be obtained (or, registrationswhich if not obtained, authorizationswould result in an event of default, approvals and permits termination or acceleration of any agreement or any put right under any agreement) under any applicable law or regulation or from any governmental authorities or third parties, including parties to loan agreements or other debt instruments, in connection with the transactions contemplated by this Agreement, including the Merger and the Debt Offer and (iiiii) taking the reasonable steps as may be necessary or advisable in promptly making any such filings, in furnishing information required in connection therewith and in timely seeking to make all necessary filings and obtain all any such consents, clearancesapprovals, waivers, licenses, orders, registrations, permits or authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To The Company shall make, subject to the extent permissible under applicable Law condition that the transactions contemplated herein actually occur, any undertakings (including undertakings to make divestitures, provided that such divestitures need not themselves be made until after the transactions contemplated hereby actually occur) required in order to comply with the antitrust requirements or any rule, regulation or restriction laws of any Governmental Entitygovernmental entity, each of including the Company, Parent and Merger Sub shallHSR Act, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts by this Agreement; provided that no such divestiture or undertaking shall be made unless acceptable to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18Newco.
(c) If The Company shall cooperate with any objections are asserted with respect reasonable requests of Newco or the SEC related to the transactions contemplated hereby under recording of the Merger as a recapitalization for financial reporting purposes, including, without limitation, to assist Newco and its affiliates with any applicable Law or if presentation to the SEC with regard to such recording and to include appropriate disclosure with regard to such recording in all filings with the SEC and all mailings to stockholders made in connection with the Merger. In furtherance of the foregoing, the Company shall provide to Newco for the prior review of Newco's advisors any suit is instituted by any Governmental Entity or any private party challenging any description of the transactions contemplated hereby as violative by this Agreement which is meant to be disseminated.
(d) The Company agrees to provide, and will cause its subsidiaries and its and their respective officers, employees and advisors to provide, all necessary cooperation in connection with the arrangement of any applicable Lawfinancing to be consummated contemporaneous with or at or after the Closing in respect of the transactions contemplated by this Agreement, each including without limitation, (x) participation in meetings, due diligence sessions and road shows, (y) the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents, and (z) the execution and delivery of any commitment letters, underwriting or placement agreements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including a certificate of the chief financial officer of the Company with respect to solvency matters, comfort letters of accountants and legal opinions as may be requested by Newco; provided that the form and substance of any of the material documents referred to in clause (y), and the terms and conditions of any of the material agreements and other documents referred to in clause (z), shall be substantially consistent with the terms and conditions of the financing required to satisfy the condition precedent set forth in Section 6.02(f) and, provided, further, that the terms and conditions of such financing may not require the payment of any commitment or other similar fee by the Company, or the incurrence of any liabilities by the Company, prior to the Effective Time of the Merger without the Company's prior consent (which consent will not be unreasonably withheld). The parties acknowledge that the payment of any fees by the Company in connection with any commitment letters shall be subject to the occurrence of the Closing. In addition, in conjunction with the obtaining of any such financing, the Company agrees, at the request of Newco, to call for prepayment or redemption, or to prepay, redeem and/or renegotiate, as the case may be, any then existing indebtedness of the Company, Parent and Merger Sub shallincluding, subject to Section 6.18 without limitation, the Senior Notes; provided that no such prepayment or redemption or in the event case of any Transaction Litigationthe Senior Notes, call for prepayment or redemption, shall themselves actually be made until contemporaneously with or after, or, in the case of the call for prepayment of the Senior Notes, immediately prior to or contemporaneously with, the Effective Time of the Merger.
(i) Newco hereby agrees to use its reasonable best efforts efforts, subject to resolve any such objections or challenges as such Governmental Entity or private party may have normal conditions, to such transactions under such applicable Law so as to permit consummation assist the Company in arranging the financing in respect of the transactions contemplated hereby on the terms set forth in by this Agreement as soon as reasonably practicable after described in Annex A-1 and Annex A-2 of the date Disclosure Schedule, including, subject to normal conditions, using its reasonable best efforts (A) to assist the Company in the negotiation of this Agreement definitive agreements with respect thereto and (B) to satisfy all conditions applicable to Newco in such definitive agreements. Newco will keep the Company informed of the status of its efforts to assist the Company in arranging such financing, including making reports with respect to significant developments. In the event any portion of such financing becomes unavailable in the manner or from the sources originally contemplated, Newco will use its reasonable best efforts, subject to normal conditions, to assist the Company in arranging any such portion from alternative sources. Each of Newco and the Company shall notify the other within 24 hours of its learning that any such financing will not be available on terms satisfactory to Newco.
(ii) Subject to the Company having received the proceeds of the financing described in Section 6.02(f) on terms satisfactory to Newco, Newco at Closing will be capitalized with an equity contribution of at least $341 million. Newco will be under no obligation pursuant to the preceding sentence unless and until the Company receives the proceeds of the financing described in Section 6.02(f) on terms satisfactory to Newco. In addition, Newco will be under no obligation under any event no later circumstances to be capitalized with equity of more than the Outside Date)$341 million.
Appears in 2 contracts
Samples: Merger Agreement (NXS I LLC), Merger Agreement (Amphenol Corp /De/)
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub parties shall use its reasonable best efforts (subject to, and in accordance with, applicable Law), including with respect to the matters set forth in Section 5.7 of the Parent Disclosure Schedule, to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Merger Sub or the Company or any of their respective Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) to the extent required, promptly, but in no event later than fifteen days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals and (iii) use reasonable best efforts to take, or cause to be taken, the all other actions and to do, or cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Entity may assert under Regulatory Law with respect to the transactions contemplated hereby. In furtherance of the foregoing, the parties shall take all actions necessary to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event no later than the Outside End Date), including (iA) using reasonable best efforts proposing, negotiating, committing to takeand effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or its Subsidiaries or affiliates or of the Company or its Subsidiaries and (B) otherwise taking or committing to take actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) or its affiliates’ freedom of action with respect to, or cause its or their ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case as may be takenrequired in order to avoid the entry of, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents or to effect all necessary applicationsthe dissolution of, noticesany injunction, petitionstemporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing or materially delaying the Closing, filings and other documents and provided that any such agreement or action by the Company shall be conditioned on the consummation of the Merger. Notwithstanding anything to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by the contrary in this Agreement, and (iii) taking the reasonable steps as may Parent shall not be necessary obligated to take any action, propose or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings divestiture or other proceedings).
(b) To undertaking, or propose or enter into a consent decree, in each case that would have either a Parent Material Adverse Effect or a Company Material Adverse Effect. Subject to applicable legal limitations and the extent permissible under applicable Law or any rule, regulation or restriction instructions of any Governmental Entity, each of the Company, Company and Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with shall keep each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to the completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit including promptly furnishing the other partieswith copies of notices or other communications received by the Company or Parent, as the case may be, or the other parties’ legal counselany of their respective Subsidiaries, to review from any filing, submission or other communication given by it to third party and/or any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any respect to such transactions. The Company and Parent shall permit counsel for the other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right reasonable opportunity to review in advance, subject and consider in good faith the views of the other party in connection with, any proposed written communication to applicable Laws any Governmental Entity. Each of the Company and Parent agrees not to participate in any meeting or discussion (other than relating to the exchange scheduling of informationany meetings or of any discussions), all of either in person or by telephone, with any Governmental Entity in connection with the information relating proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with gives the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties party the opportunity to attend and participate participate. The Company and Parent shall furnish the other with such necessary information and reasonable assistance as the other may reasonably request in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply connection with its preparation of necessary filings or submissions of information to any Transaction LitigationGovernmental Entity. Either Parent or the Company may designate any competitively sensitive information provided to the other under this Agreement as “outside counsel only”. Such materials and the information contained therein shall be given only to outside legal counsel of the other and will not be disclosed by such outside counsel to employees, which officers or directors of their client unless express written permission is obtained in advance from the subject of Section 6.18disclosing party or its legal counsel.
(c) If any objections are asserted with respect to In furtherance and not in limitation of the transactions contemplated hereby under any applicable Law or covenants of the parties contained in this Section 5.7, if any suit administrative or judicial action or proceeding, including any proceeding by a private party, is instituted by any Governmental Entity (or any private party threatened to be instituted) challenging any of the transactions transaction contemplated hereby by this Agreement as violative of any applicable Regulatory Law, each of the Company, Company and Parent shall cooperate in all respects with each other and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, shall use its their respective reasonable best efforts to resolve contest and resist any such objections action or challenges as such Governmental Entity proceeding and to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law so as to permit overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated hereby on by this Agreement. Notwithstanding the terms set forth foregoing or any other provision of this Agreement, nothing in this Section 5.7 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as soon as reasonably practicable after the date such party has, prior to such termination, complied with its obligations under this Agreement, including this Section 5.7.
(d) For purposes of this Agreement Agreement, “Regulatory Law” means the Xxxxxxx Act of 1890, the Xxxxxxx Antitrust Act of 1914, the HSR Act and all other federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including any antitrust, competition or trade regulation Laws, that are designed or intended to (and in i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition or (ii) protect the national security or the national economy of any event no later than the Outside Date)nation.
Appears in 2 contracts
Samples: Merger Agreement (Centex Corp), Merger Agreement (Pulte Homes Inc/Mi/)
Reasonable Best Efforts. (a) Subject to On the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent on the one hand, and Merger Sub Purchaser, on the other hand, shall (and shall cause their respective Affiliates to) cooperate with each other and use its their respective reasonable best efforts to take, take or cause to be takentaken all actions, the actions and to do, do or cause to be donedone all things, the things reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby as soon as reasonably practicable, including to (i) promptly prepare and file (as applicable) all permits, consents, approvals, confirmations (whether in writing or orally) and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated hereby, including those listed on Section 1.2(d)(1)(B) of the Company Disclosure Schedules, as promptly as reasonably practicable after following the date of this Agreement (hereof and in any event no later than fifteen (15) business days following the Outside Date)date hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, and (ii) preparing and filing respond to any request for information from any Governmental Entity relating to the foregoing, so as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and enable the parties hereto to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits consummate the transactions contemplated by this Agreement; provided, and however, that nothing herein shall require the Company or Purchaser to pay or commit to pay any amount or incur any material obligation in favor of or grant any material accommodation (iiifinancial or otherwise) taking the reasonable steps as may to any person in connection with such efforts. In no event shall Purchaser be necessary or advisable required to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary agree to attend any regulatory meetings, hearings provide capital or other proceedings)financial support to the Company or any of its Subsidiaries thereof other than the Purchase Price to be paid for the Securities to be purchased by it pursuant to the terms of, or subject to the conditions set forth in, this Agreement.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entitypermitted by Law, each of Purchaser and the CompanyCompany will (i) have the right to review in advance all information to the extent relating to such party and any of its respective Affiliates and its and their respective directors, Parent officers, partners and Merger Sub shallstockholders which appears in any proposed filings to be made with, or written materials to be submitted to, any Governmental Entity (and each will consult with the other party relating to the exchange of such filings and shall consider in good faith any comments made by the other party in relation thereto, including with respect to all information which appears in any filings relating to the other party and any of its respective Affiliates and its and their respective directors and officers) and (ii) keep each other reasonably informed of, and consult with the other in advance of, any substantive meeting or conference with any Governmental Entity that is reasonably likely to relate to the transactions contemplated by this Agreement or affect Purchaser or its investment in the Company in connection with the efforts referenced above transactions. In exercising the foregoing right, each party agrees to obtain all requisite approvalsact reasonably and as promptly as reasonably practicable. To the extent permitted by applicable Law, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts each party agrees to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties party reasonably apprised of the status of matters relating referred to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.183.2(b).
(c) If To the extent permitted by applicable Law, the parties shall promptly advise each other upon receiving any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by material communication from any Governmental Entity whose consent, waiver, approval or any private party challenging any of authorization is required for the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on by this Agreement, including any communication that causes such party to believe that there is a reasonable likelihood that any required approval, consent or authorization from a Governmental Entity related to the terms set forth in transactions contemplated by this Agreement as soon as reasonably practicable after will not be obtained or that the date receipt of this Agreement (and in any event no later than the Outside Date)such approval, consent or authorization will be materially delayed or conditioned.
Appears in 2 contracts
Samples: Investment Agreement (AlTi Global, Inc.), Investment Agreement (AlTi Global, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its reasonable best efforts to take, or cause to be taken, the any and all actions and to do, or cause to be done, the all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions Merger and make effective the Transactions contemplated hereby by this Agreement, as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits, and permits authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger and make effective the Transactions contemplated by this AgreementAgreement (collectively, the “Regulatory Approvals”), including (i) preparing and filing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents necessary to obtain the Regulatory Approvals and (iiiii) taking the reasonable all steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)the Regulatory Approvals.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction Each of any Governmental Entity, each of the Company, Parent and Merger Sub shall, the Company shall cooperate with one another in connection with obtaining the efforts referenced above to obtain all requisite approvalsRegulatory Approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to including by (i) cooperate in all respects with each other party in connection with any filing providing or submission submitting on a timely basis, and in connection with any investigation or other inquiryas promptly as practicable, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity ordocumentation or information that is required, or advisable, in connection with any pending or threatened litigation obtaining the Regulatory Approvals, including by any private party, with any allowing the other Person and Party to receive final versions of the same (it being understood that each party shall, without limitation, have the right a reasonable opportunity to review in advance, subject advance and comment on drafts of filings and submissions (other than documents that are required to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears be included in any filing made withrequired under the HSR Act), (ii) keeping one another fully informed as to the status of and the processes and proceedings relating to obtaining the Regulatory Approvals, and promptly notifying each other of any communication received by such Party from, or materials submitted given by such Party to, any third party the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any Governmental EntityEntity in respect of the Transactions contemplated by this Agreement, including providing copies of any such written communications, (iii) not making any submissions or filings, participating in any meetings or any material conversations with the DOJ, FTC or any Governmental Entity in respect of any filings, investigations or other inquiries related to the Transactions contemplated by this Agreement or the Merger), (iv) consult unless it consults with the other parties Party in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted not precluded by such Governmental Entity or other PersonEntity, give gives the other parties Party the opportunity to review drafts of any submissions or filings, or attend and participate in such any communications or meetings, conferencesand (iv) notifying, conference callsconsulting and cooperating with and considering in good faith the views of one another prior to offering, discussions and communicationsnegotiating or accepting any proposal involving the sale, divestiture, license or disposition of assets, or the acceptance of operational restrictions or limitations on assets or businesses or undertaking of any other form of behavioral remedy, as contemplated by Section 6.2(d). Notwithstanding Despite the foregoing, submissions, filings or other written communications with the obligations set forth in this Section 6.5(b) shall DOJ, FTC or any other Governmental Entity may be redacted as necessary before sharing with the other Party to address reasonable attorney-client or other privilege or confidentiality concerns, provided that a Party must provide external legal counsel to the other Party with non-redacted versions of drafts or final submissions, filings or other written communications with the DOJ, FTC, or any other Governmental Entity on the basis that the redacted information will not apply to any Transaction Litigation, which is the subject of Section 6.18be shared with its clients.
(c) If any objections are asserted In furtherance and not in limitation of the foregoing, each Party agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby Transactions as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon promptly as reasonably practicable practicable, and in any event within eight (8) business days after the date execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable.
(d) In furtherance and not in limitation of the foregoing, and despite anything to the contrary in this Section 6.2, Parent and the Company will and, will cause their respective Affiliates to offer to take, and if such offer is accepted, will, at its own expense, take any event no later than and all actions necessary to obtain Regulatory Approval, including proposing, negotiating and offering to effect, and if such offer is accepted, commit to and effect, by consent agreement or order, hold separate arrangement, undertaking or otherwise, the sale, divestiture, license or disposition of assets, or the acceptance of operational restrictions or limitations on assets or businesses or undertaking of any other form of behavioral remedy, as may be required or desirable in order to obtain Regulatory Approval or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders, under applicable antitrust, merger control or foreign investment rules required or otherwise agreed between the Parties as appropriate to permit the Parties to consummate the Merger and make effective the Transactions contemplated by this Agreement before the Outside Date).
(e) In furtherance and not in limitation of the foregoing, and despite anything to the contrary in this Section 6.2, Parent and the Company will contest, litigate, defend against and appeal any lawsuit, claim or other legal proceeding, whether judicial or administrative, threatened or pending preliminary or permanent injunction or other order, decree, judgment or ruling that would adversely affect the ability of the Parties to consummate the Merger and make effective the Transactions contemplated by this Agreement before the Outside Date.
Appears in 2 contracts
Samples: Merger Agreement (Waste Connections, Inc.), Merger Agreement (Progressive Waste Solutions Ltd.)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Mergers and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities, including any required action or non-action under the Antitrust Laws (the “Required Consents”) prior to the Effective Time, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain a Required Consent from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers, and any necessary or appropriate financing arrangements, from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and applicable Laws (iv) the execution and regulations delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than within ten business days of the Outside Date)date hereof, including (iii) using appropriate filings, if any are required, pursuant to foreign Antitrust Laws as promptly as practicable and (iii) all other necessary filings with other Governmental Entities relating to the Merger, and, in each case, to supply as promptly as practicable any additional information and documentary material that may be formally or informally requested pursuant to the Antitrust Laws or by such authorities and to use reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions expiration or termination of any applicable waiting periods under the Antitrust Laws and the receipt of the Required Consents as soon as practicable. Notwithstanding anything to Closing set forth the contrary in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may neither MWV nor RockTenn shall be necessary or advisable required to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits hold separate (including providing all necessary information and documentary material and providing personnel as necessary to attend by trust or otherwise) or divest any regulatory meetings, hearings of its businesses or assets or enter into any consent decree or other proceedings)agreement that would restrict it in the conduct of its business as heretofore conducted if such action is reasonably likely to have a material adverse effect on TopCo and its subsidiaries, taken as a whole, after giving effect to the Mergers and taking into account the total benefits expected to be realized by TopCo after completion of the Mergers.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each Each of the Companyparties shall consult and cooperate with one another, Parent and Merger Sub shall, consider in connection with good faith the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised views of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each caseone another, in connection with any pending analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or threatened litigation regarding submitted by or on behalf of any party, hereto in connection with proceedings under or relating to any Antitrust Law. Each of the transactions contemplated herebyparties shall (i) promptly notify the other party of any communication received by that party from, (iii) or given by it to, any Governmental Entity and, subject to Applicable Law, permit the other parties, or party to review in advance any proposed communication to any such Governmental Entity and incorporate the other parties’ legal counselparty’s reasonable comments, (ii) not agree to review participate in any meeting or discussion with any such Governmental Entity in respect of any filing, submission investigation or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to inquiry concerning this Agreement or the Merger)Merger unless, (iv) consult to the extent reasonably practicable, it consults with the other parties party in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonEntity, give gives the other parties party the opportunity to attend and participate in such meetings(iii) furnish the other party with copies of all correspondence, conferencesfilings and written communications between them and their affiliates and their respective officers, conference callsdirectors, discussions employees and communications. Notwithstanding the foregoingRepresentatives, the obligations set forth in this Section 6.5(b) shall not apply to on one hand, and any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby its respective staff on the terms set forth in other hand, with respect to this Agreement and the Merger, provided that materials furnished pursuant to this Section 6.3(b) may be redacted as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
Appears in 2 contracts
Samples: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.4(c)), each of the CompanyParent, Parent and Merger Sub shall and Parent GP, on the one hand, and the Partnership, on the other hand, will cooperate with the other and use (and will cause each of their respective Subsidiaries to use) its reasonable best efforts to (i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, the things all things, necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate cause the transactions contemplated hereby conditions to the Closing to be satisfied as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)) and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable and fully all documents documentation to effect all necessary applicationsfilings, notifications, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings required or other proceedings).
(b) To the extent permissible recommended filings under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private partyAntitrust Laws), (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and obtain promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)) all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the transactions contemplated hereby, (iii) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) obtain all necessary consents, approvals or waivers from third parties, provided, however, that notwithstanding anything to the contrary in this Agreement, none of Parent, Merger Sub, Parent GP or the Partnership shall be required to sell, divest, dispose of, license, lease, operate, conduct in a specified manner, hold separate or discontinue or restrict or limit, before or after the Closing Date, any assets, liabilities, businesses, licenses, operations, or interest in any assets or businesses, that would, individually or in the aggregate, have a Material Adverse Effect on the business of Parent and its Subsidiaries, taken as a whole or the Partnership and its Subsidiaries, taken as a whole, respectively. For purposes of this Agreement, “Antitrust Laws” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
Appears in 2 contracts
Samples: Merger Agreement (Markwest Energy Partners L P), Merger Agreement
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the CompanyParent, Parent Holdings and Merger Sub Sub, on the one hand, and the Partnership and the General Partner, on the other hand, shall cooperate with the other and use its and shall cause their respective Subsidiaries to use reasonable best efforts to (i) take, or cause to be taken, the actions all appropriate actions, and to do, or cause to be done, the things all things, necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate cause the transactions contemplated hereby conditions to the Closing to be satisfied as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to takeincluding, for the avoidance of doubt, in the case of Parent and the General Partner, until the Effective Time or cause to be takenthe termination of this Agreement, retaining ownership and voting control, directly or indirectly, over all Common Units, the actions necessary General Partner Interest and the Incentive Distribution Rights in the Partnership beneficially owned by Parent, any of its Subsidiaries or the General Partner, as applicable, as of the date of this Agreement or acquired thereafter and to cause consummate and make effective, in the conditions to Closing set forth in Article VII to be satisfiedmost expeditious manner practicable, (ii) the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documents documentation to effect all necessary applicationsfilings, notifications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, ordersstatements, registrations, authorizationssubmissions of information, approvals applications and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private partydocuments, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and obtain promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)) all approvals, consents, waivers, clearances, expirations or terminations of waiting periods, registrations, Permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the transactions contemplated by this Agreement, and (iii) defend any Proceedings challenging this Agreement or the consummation of the transactions contemplated by this Agreement or seek to have lifted or rescinded any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Green Plains Inc.), Merger Agreement (Green Plains Partners LP)
Reasonable Best Efforts. (a) Subject (i) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall as promptly as practicable following the date of this Agreement file with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “DOJ”) all requisite documents and notifications relating to this Agreement and the terms transactions contemplated hereby, including the Merger, as required by the HSR Act and conditions the rules and regulations promulgated thereunder, together with all such other filings and submissions under Applicable Law, as the case may be, for the consummation of the transactions contemplated by this Agreement, including the Merger; and (ii) each of Parent and Merger Sub, on the one hand, and the Company, Parent and Merger Sub on the other hand, shall use its reasonable best efforts to obtain and maintain in connection with the transactions contemplated by this Agreement, including the Merger, all approvals, consents, registrations, permits, authorizations and other confirmations of all Government Authorities which, if not obtained, would result in a Parent Material Adverse Effect or Company Material Adverse Effect, as applicable.
(b) Each of Parent, Merger Sub and the Company shall: (i) cooperate and coordinate with the other in the making of any filings or submissions that are required to be made under any Applicable Laws or requested to be made by any Government Authority in connection with the transactions contemplated by this Agreement, including the Merger; (ii) supply the other or its Representatives with any material information that may be required or requested by any Government Authority in connection with such filings or submissions; (iii) supply any additional information that may be required or requested by the FTC, the DOJ or other Government Authorities as promptly as practicable; (iv) use their reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any Applicable Laws as soon as reasonably practicable; and (v) use their reasonable best efforts to offer to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for effective the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiryincluding the Merger, including by taking all such actions and doing all such things necessary to resolve such objections, if any, as the FTC, the DOJ or any proceeding initiated other Government Authority or Person may assert under any Applicable Laws and to avoid or eliminate each and every impediment under any Applicable Law that may be asserted by the FTC, the DOJ or any private party, (ii) keep the other parties apprised of the status of matters relating Government Authority so as to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of enable the transactions contemplated hereby, (iii) permit including the other parties, or the other parties’ legal counselMerger, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18be consummated as soon as expeditiously possible.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any Each of the transactions contemplated hereby as violative of any applicable LawParent, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in and the event of any Transaction Litigation, Company shall use its reasonable best efforts to resolve any such objections or challenges structure the Merger to qualify as such Governmental Entity or private party may have to such transactions a reorganization under such applicable Law so as to permit consummation the provisions of Section 368 of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable Code. Both prior to and after the date Effective Time, each party’s books and records shall be maintained, and all federal, state and local income tax returns and schedules thereto shall be filed, in a manner consistent with the Merger being qualified as a reverse triangular merger under Section 368(a)(2)(E) of this Agreement the Code (and comparable provisions of any applicable state or local laws), except to the extent the Merger is determined in any event no later than a final administrative or judicial decision not to qualify as a reorganization within the Outside Date)meaning of Section 368(a) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Synageva Biopharma Corp.), Merger Agreement (Trimeris Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreementherein provided for, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its reasonable best efforts in good faith to take, or cause to be takentaken (including causing any Subsidiaries to take), the actions all appropriate action, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby as soon as reasonably practicable after by this Agreement and will cooperate fully with the date of other parties hereto to that end; provided, however, that nothing in this Agreement (and other than as expressly provided for in any event no later than Section 1.01) shall obligate Parent or Purchaser to keep the Outside DateOffer open beyond the expiration date set forth in the Offer (as it may be extended from time to time). Without limiting the foregoing, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, Purchaser shall use its reasonable best efforts to (i) cooperate make promptly any required submissions under the HSR Act that the Company or Parent determines should be made, in all respects each case, with each other party in connection with any filing or submission respect to the Offer, the Merger and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and (ii) Parent, Purchaser and the Company shall cooperate with one another (A) in promptly inform the determining whether any filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other federal, state or foreign law or regulation, including any shipping or maritime laws, or whether any consents, approvals or waivers are required to be or should be obtained from other parties of any communication (including to loan agreements or other contracts or instruments material to the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, Company's business in connection with any pending or threatened litigation regarding any the consummation of the transactions contemplated herebyby this Agreement and (B) in promptly making any such filings, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, furnishing information required in connection with therewith and seeking to obtain timely any pending such consents, permits, authorizations, approvals or threatened litigation by waivers. In case at any private partytime after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, with any other Person the proper officers and to receive final versions directors of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement shall take all such necessary action.
(b) In the event that any action, suit, proceeding or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion investigation relating hereto or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity transactions contemplated hereby is commenced or any injunction or other Personorder (whether temporary, give preliminary or permanent) comes into effect, whether before or after the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoingEffective Time, the obligations set forth in this Section 6.5(b) shall not apply parties hereto agree to any Transaction Litigation, which is the subject of Section 6.18cooperate and use their reasonable best efforts to defend vigorously against it and respond thereto or appeal as promptly as practicable.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby Except as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 specified in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on Confidentiality Agreement (the terms set forth of which are incorporated herein by reference), nothing in this Agreement as soon as reasonably practicable after the date shall obligate Parent, Purchaser or any of this Agreement their respective Subsidiaries or affiliates to agree:
(and i) to limit (in any event no later than manner whatsoever), to not exercise any rights of ownership of any securities (including the Outside DateShares), or to divest, dispose of or hold separate any securities of all or a portion of their respective businesses, assets or properties, or of the business, assets or properties of the Company or any of its Subsidiaries; or
(ii) to limit (in any manner whatsoever) the ability of such entities
(A) to conduct their respective businesses, own their assets or properties, or to conduct the businesses or own the properties or assets of the Company and its Subsidiaries; or
(B) to control their respective businesses or operations or the businesses or operations of the Company and its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Crowley Maritime Corp), Merger Agreement (Marine Transport Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations or pursuant to any contract or agreement to consummate the transactions contemplated hereby Merger and the other Transactions as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or otherwise providing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits contemplated by this Agreementauthorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other Transactions, and (iiiii) taking the reasonable all steps as may be necessary or advisable necessary, subject to make all necessary filings and the limitations in this Section 7.8, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersregistrations, registrationspermits, authorizations, orders and approvals and permits (including providing all iii) executing and delivering any additional instruments reasonably necessary information or advisable to consummate the Merger and documentary material the Transactions contemplated by this Agreement and providing personnel as necessary to attend fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no party will have any regulatory meetingsobligation (A) to propose, hearings negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other proceedings)disposition of any material portion of the assets or businesses of such party, any of its Subsidiaries or their Affiliates or (B) otherwise to take or commit to take any actions that would limit in any material respect the freedom of such party, its subsidiaries or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets; provided, further, that the Company and its Subsidiaries shall not take any of the actions referred to in the proceeding proviso (or agree to take such actions) without Parent’s prior written consent.
(b) To In connection with and without limiting the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Companyparties shall give (or shall cause their respective Affiliates to give) any required notices to third parties, Parent and Merger Sub shalleach of the parties shall use, in connection with the efforts referenced above and cause each of their respective Subsidiaries and Affiliates to obtain all requisite approvalsuse, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each obtain any third party consents that are necessary, proper or advisable to consummate the Merger and the other party Transactions. Each of the parties will, and shall cause their respective Affiliates to, furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any filing required filings, notices, applications, registrations or submission and in connection submissions with any investigation or other inquiryGovernmental Entity and will cooperate in responding to any inquiry from a Governmental Entity, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform informing the other parties of such inquiry, consulting in advance before making any communication (including the initiation presentations or submissions to a Governmental Entity and supplying each other with copies of any proceeding) received by such all material correspondence, filings or communications between either party from and any Governmental Entity with respect to this Agreement. To the extent reasonably practicable and any material communication received from any private partylegally permitted, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person parties and to receive final versions of the same (it being understood that each party shall, without limitation, their Representatives shall have the right to review in advance, subject to applicable Laws relating to advance and each of the exchange of informationparties will consult the others on, all of the information relating to such party, the other and any each of its respective Subsidiaries, which their Affiliates that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties shall, nor shall they permit their respective Representatives to, participate independently in any proceeding by meeting or engage in any private party, substantive conversation with any Governmental Entity in respect of any filing, investigation or other Person and (v) inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by such Governmental Entity or other Personapplicable Law, give without giving the other parties the opportunity to attend and or participate (whether by telephone or in person) in any such meetingsmeeting with such Governmental Entity (except that confidential, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18competitively sensitive business information may be excluded from such a meeting or conversation).
(c) If Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any objections are asserted approval or consent from any Person with respect to the transactions contemplated hereby under Merger and the other Transactions, neither the Company nor any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any Subsidiary of the transactions contemplated hereby as violative of Company shall pay or commit to pay to any applicable LawPerson whose approval or consent is being solicited any cash or other consideration, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of make any Transaction Litigation, use its reasonable best efforts to resolve accommodation or commitment or incur any such objections liability or challenges as such Governmental Entity or private party may have other obligation to such transactions under Person without the prior written consent of Parent. The parties shall cooperate to obtain such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)consents.
Appears in 2 contracts
Samples: Merger Agreement (Capstead Mortgage Corp), Merger Agreement (Benefit Street Partners Realty Trust, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party hereto will use its reasonable best efforts to take, or cause to be taken, the actions in good faith, all actions, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and to cause to be satisfied all conditions precedent to its obligations under this Agreement, in each case as soon as reasonably practicable practicable, after the date of this Agreement (and in any event no later than hereof, including, consistent with the Outside Date)foregoing, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with the objective of being in a position to consummate the Merger as promptly as practicable following the date of this Agreement, all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits, rulings, authorizations and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be clearances necessary or advisable to make all necessary filings be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (collectively, the "REQUIRED APPROVALS"), and (ii) using its reasonable best efforts to obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)the Required Approvals.
(b) To Each of Parent and the extent permissible under applicable Law Company shall use its reasonable best efforts to cooperate in all respects with each other in connection with any filing or submission to or any ruleinvestigation or proceeding by the Federal Trade Commission (the "FTC"), regulation the Antitrust Division of the Department of Justice (the "DOJ") or restriction of any other Governmental Entity, each .
(c) Each of the Company, Parent and Merger Sub the Company shall, in connection with the efforts referenced above in Section 6.3(a) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyRequired Approvals, use its reasonable best efforts to (i) cooperate in all respects with each subject to applicable Law, permit the other party to review and discuss in advance, and consider in good faith the views of the other in connection with with, any filing proposed written or submission and in connection with any investigation material oral communication (or other inquirycorrespondence or memoranda) between it and any Governmental Entity, including any proceeding initiated by any private party, and (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the each other parties of and supply to such other party any communication (including the initiation of any proceedingor other correspondence or memoranda) received by such party from from, or given by such party to, the DOJ, the FTC or any other Governmental Entity and any material communication received from any private partyEntity, in each case, case regarding the Merger contemplated hereby.
(d) In furtherance and not in connection with any pending or threatened litigation regarding any limitation of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions covenants of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth contained in this Section 6.5(b) shall not apply to any Transaction Litigation6.3, which is the subject of Section 6.18.
(c) If if any objections are asserted with respect to the transactions Merger contemplated hereby under any applicable Law antitrust or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable competition Law, each of the Company, Parent and Merger Sub shall, subject the Company agrees to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts (which under no circumstances shall involve divesting of material assets) to resolve any such objections antitrust concerns, federal, state, foreign or challenges as such Governmental Entity private, obtain all Required Approvals and obtain termination of the waiting period under the HSR Act or private party may have to such transactions under such any other applicable Law and the termination of any outstanding judicial or administrative orders prohibiting the Closing so as to permit consummation of the transactions Merger as soon as practicable. In furtherance and not in limitation thereof, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened in writing to be instituted) challenging any transaction contemplated hereby on the terms set forth in by this Agreement as soon violative of any Law or regulation, or if any statute, rule, regulation, executive order, decree, injunction or administrative order is enacted, entered, promulgated or enforced by a Governmental Entity that would make the Merger illegal or would otherwise prohibit or materially impair or delay the consummation the Merger, the Company shall cooperate with Parent in all respects in responding thereto, and each shall use its respective reasonable best efforts to contest, resist and/or attempt to resolve any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger contemplated by this Agreement, and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as reasonably practicable after to permit consummation of the date of this Agreement (and in any event no later than the Outside Date)Merger.
Appears in 2 contracts
Samples: Merger Agreement (JDN Realty Corp), Merger Agreement (Developers Diversified Realty Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and the other Transactions as soon promptly as reasonably practicable and advisable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (iiA) preparing and filing as promptly as practicable all documents to effect filing, in consultation with the other Party, all necessary or advisable applications, notices, petitions, filings and other documents required to be prepared or filed by such Party, including any and all formal notifications and drafts to any other Governmental Entity in jurisdictions requiring pre-notification pursuant to applicable foreign Antitrust Law as determined following consultation with the other Party, in each case as promptly as practicable and advisable after the date hereof (taking all reasonable steps with the target of making each applicable initial filing within sixty (60) days, but in any event no later than ninety (90) days, after the date hereof), and (B) using its reasonable best efforts to obtain as promptly as practicable and advisable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits contemplated authorizations necessary or advisable to be obtained by this Agreement, such Party from any third party and/or any Governmental Entity (including under the HSR Act and the DPA) in order to consummate the Merger or any of the other Transactions and (iiiii) taking cooperating with the other Party required to file such applications, notices, petitions, filings and other documents by using its reasonable best efforts to take all steps as may be necessary or advisable to make in connection therewith, including providing all necessary filings information and assistance reasonably requested by such Party.
(b) Each of Cyclone and Hurricane shall, in connection with the efforts referenced in Section 6.2(a) to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances permits, and authorizations for the transactions contemplated herebyTransactions under the HSR Act or any other Antitrust Law or to obtain CFIUS Approval, use its reasonable best efforts to (i) cooperate in all respects and consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party under any private partyAntitrust Law, including by allowing the other Party to have a reasonable opportunity to review and comment on drafts of filings and submissions; (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Party of any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, (A) the Antitrust Division of the Department of Justice (the "DOJ"), the Federal Trade Commission (the "FTC") or any other Governmental Entity with respect to any Antitrust Law or (B) CFIUS or any other Governmental Entity in connection with the CFIUS Approval, in each case by promptly providing copies to the other Party of any such written communications, and of any material communication received from any private party, in each case, or given in connection with any pending or threatened litigation proceeding by a private party under any Antitrust Law, in each case regarding any of the transactions contemplated hereby, Transactions; (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right Party to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any material communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, substantive telephone call or conference call, discussion or communication with, the DOJ, the FTC, CFIUS or any such other Governmental Entity with respect to the subject matter of this Section 6.2(b), or, in connection with any proceeding by a private party under any private partyAntitrust Law, with any other Person and (viv) to the extent permitted by such the DOJ, the FTC, CFIUS or any other applicable Governmental Entity or other PersonPerson with respect to the subject matter of this Section 6.2(b), give the other parties Party the opportunity to attend and participate in such meetings, conferences, conference calls, discussions any in-person meetings and communications. Notwithstanding to participate in any substantive telephone calls with the foregoingDOJ, the obligations set forth in this Section 6.5(b) shall not apply to FTC, CFIUS or any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted other Governmental Entity or other Person with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity subject matter of this Section 6.2(b) ; provided, that materials provided pursuant to clauses (i) - (iii) hereof may be redacted (1) to remove references concerning the valuation of Cyclone, Hurricane or any private party challenging any of the transactions contemplated hereby their Subsidiaries, (2) as violative of any necessary to comply with contractual arrangements and applicable Law, each of the Company, Parent and Merger Sub shall, subject (3) as necessary to Section 6.18 in the event of any Transaction Litigation, use its address reasonable best efforts to resolve any such objections privilege or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)confidentiality concerns.
Appears in 2 contracts
Samples: Merger Agreement (Huntsman CORP), Merger Agreement (Huntsman CORP)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, and assist and cooperate with the other in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Applicable Law to consummate and make effective the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documents documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable (ii) obtaining and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this AgreementAgreement (whether or not such approvals, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits (including providing all necessary information and documentary material and providing personnel as necessary other confirmations are conditions to attend any regulatory meetings, hearings or other proceedingsthe consummation of the Merger pursuant to Article 9).
(b) To In furtherance and not in limitation of the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Company, Parent and Merger Sub shallthe Company shall make, and not withdraw, as promptly as practicable and in any event within 30 Business Days (or, in connection the case of the succeeding clauses (iii) and (iv), 60 days) of the date hereof, (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with the efforts referenced above respect to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, (ii) all necessary filings to obtain consents from the FCC (including FCC Forms 394 or other appropriate forms) that are required in connection with the Merger, (iii) all necessary filings to obtain consents from the state regulators and the Franchise authorities that are required in connection with the Merger and (iv) all other registrations, declarations, notices and filings with Governmental Authorities that are required in connection with the Merger. Each of the Company and Parent shall use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with supply as promptly as practicable any filing or submission additional information and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating documentary material that may be requested pursuant to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as practicable.
(c) Parent shall take the lead in (i) the scheduling of, and strategic planning for, any meeting with any Governmental Authority under the HSR Act or any other applicable Competition Law, (ii) the making of any filings, including the initial filings under the HSR Act, (iii) the process for the receipt of any necessary approvals and (iv) the resolution of any investigation or other inquiry of any such objections Governmental Authority. Without limiting the foregoing sentence, except as prohibited by Applicable Law, each of Parent and the Company shall, (A) to the extent reasonably practicable, consult with each other prior to taking any material substantive position with respect to the filings under the HSR Act or challenges as any other Competition Law in discussions with or filings to be submitted to any Governmental Authority, (B) to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act or any other Competition Law, and (C) to the extent reasonably practicable, coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such party with any Governmental Entity Authority relating to this Agreement or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on under the terms set forth HSR Act or any other Competition Law.
(d) Unless prohibited by Applicable Law or by the applicable Governmental Authority, each of the Company and Parent shall (i) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 8.01(a)) without the other (provided that, subject to Section 8.01(c), either party may participate in or attend any such non-substantive meeting), (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one party is prohibited by Applicable Law or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto; provided that, Parent or its representatives may conduct such a meeting or conversation without the Company or its representatives present upon the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything in this Agreement as soon as reasonably practicable after to the date contrary, the parties hereto understand and agree that “reasonable best efforts” shall not require Parent to (i) divest or otherwise hold separate (including by establishing a trust or otherwise) any businesses, assets or properties of Parent or any of its Subsidiaries or any businesses, assets or properties of the Company or any of its Subsidiaries, (ii) accept any conditions or take any other actions that would apply to, or affect, any businesses, assets or properties of Parent or any of its Subsidiaries or any businesses, assets or properties of the Company or any of its Subsidiaries or (iii) litigate or participate in the litigation of any proceeding involving the FCC, the Federal Trade Commission or Department of Justice, whether judicial or administrative, in order to (A) oppose or defend against any action by any such Governmental Authority to prevent or enjoin the consummation of the Merger or any of the other transactions contemplated by this Agreement or (B) overturn any regulatory action by any such Governmental Authority to prevent consummation of the Merger or any of the other transactions contemplated by this Agreement, including by defending any suit, action or other legal proceeding brought by any such Governmental Authority in order to avoid the entry of, or to have vacated, overturned or terminated or appealing any order, except, in the case of this Agreement clause (iii), to the extent Parent determines in its reasonable good faith judgment that there is a reasonable prospect of success in relation to such litigation and that the participation by Parent in such litigation would not pose a material risk of the imposition of a Burdensome Condition; provided, however, that, (x) notwithstanding the preceding clause (i), Parent is prepared to divest up to approximately 3 million subscribers of the combined company and (y) Parent and its Subsidiaries shall be required, notwithstanding the preceding clause (ii), (A) to take the actions and accept the conditions described in the immediately preceding clause (ii) to the extent such actions are consistent in scope and magnitude with the conditions and actions (other than any condition that was subsequently suspended by the agency that imposed the condition) required or imposed by Governmental Authorities in connection with prior acquisitions of United States domestic Cable Systems consummated within the past twelve years with an aggregate purchase price of at least $500 million and (B) to implement the undertakings set forth on Section 8.01 of the Parent Disclosure Schedule (other than any undertaking to divest subscribers, the “Undertakings”), with such modifications to the Undertakings that, taken in the aggregate, are no more adverse to the businesses, assets and properties of Parent and its Subsidiaries, taken as a whole, or the businesses, assets and properties of the Company and its Subsidiaries, taken as a whole (each condition and action described in clause (i) or (ii) that Parent is not required to accept or take after giving effect to the proviso to this Section 8.01(e), a “Burdensome Condition”). In that regard, the Company agrees to work in good faith in connection with Parent’s efforts to structure any divestitures (whether by sale, spin off or otherwise) in a manner that Parent believes in good faith is in the best interests of the combined company and its shareholders. In addition, the Company shall not accept any of the conditions or take any of the foregoing actions (whether or not consistent in scope and magnitude with such prior conditions and actions) without Parent’s prior written consent. Notwithstanding the foregoing, no party shall be required to commit to or effect any action contemplated by this Section 8.01(e) that is not conditioned upon the consummation of the Merger.
(f) Notwithstanding anything to the contrary herein, the Company shall not accept, agree to or accede to any modifications or amendments to, or in connection with, or any conditions to the transfer of, any Franchises that are not approved by Parent in writing; provided, however, that if the Company affords Parent reasonable notice of, and opportunity to attend and participate in, meetings or other discussions relating to Franchise approvals where modifications, amendments or conditions are expected to be discussed or negotiated, Parent shall approve any such modifications, amendments or conditions that are approved by the Company so long as such modifications, amendments or conditions are commercially reasonable and are similar in nature, extent and impact (giving due consideration to such factors as the relative size of the Franchise involved, the proximity of other Franchises, the financial and operational impact of the change and the precedential impact thereof) to modifications, amendments or conditions agreed to by Parent in connection with material acquisitions of cable assets effected since 2001. In addition, if Parent seeks any Franchise approval pursuant to the transactions contemplated by this Agreement, Parent shall agree to any modifications, amendments or conditions that are commercially reasonable and are similar in nature, extent and impact (giving due consideration to such factors as the relative size of the Franchise involved, the proximity of other Franchises, the financial and operational impact of the change and the precedential impact thereof) to modifications, amendments or conditions agreed to by Parent in connection with material acquisitions of cable assets effected since 2001.
(g) Each of Parent and the Company shall not, and shall cause their respective Subsidiaries and Affiliates not to, (i) take any action that would reasonably be expected to have the effect of materially delaying, impairing or impeding the receipt of any regulatory approvals required in connection with the transactions contemplated hereby or the Closing, or (ii) acquire (by merger consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities (other than securities issued by such party as permitted by Section 6.01 or Section 7.01, as the case may be), properties, interests or business in any event no later than transaction or series of related transactions, if such acquisition would (A) require approval of the FCC, or (B) (without the consent of the other, not to be unreasonably withheld, conditioned or delayed by the Company) have a value, or involve the payment of consideration, in excess of $1 billion; provided, however, that the foregoing sentence shall not prohibit Parent, the Company, or any of their respective Subsidiaries or Affiliates from taking any action set forth on Section 8.01(g) of the Parent Disclosure Schedule.
(h) Each of the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 8.01 as “Outside Date)Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and, subject to any additional confidentiality or joint defense agreement the parties may mutually propose and enter into, will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 8.01, materials provided to the other party or its outside counsel may be redacted (i) to remove references concerning valuation, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
Appears in 2 contracts
Samples: Merger Agreement (Time Warner Cable Inc.), Merger Agreement (Comcast Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 6.5(d)), each of prior to the CompanyClosing, Parent and Merger Sub the Company shall use its their respective reasonable best efforts to take, or cause to be taken, the actions all reasonable actions, and to do, or cause to be done, the all reasonable things necessary, proper or advisable under any applicable Laws to consummate and make effective the Merger as promptly as practicable, including (i) the preparation and filing of all forms, registrations and notifications required to be filed to consummate the Merger, (ii) using reasonable best efforts to satisfy the conditions to consummating the Merger, (iii) using reasonable best efforts to obtain (and to cooperate with each other in obtaining) any consent, authorization, expiration or termination of a waiting period, permit, Order or approval of, waiver or any exemption by, any Governmental Entity (which actions shall include furnishing all information and documentary material required under the HSR Act and the Competition Act, to the extent necessary, proper or advisable) required to be obtained or made by Parent, Merger Sub, the Company or any of their respective Subsidiaries in connection with the Merger or the taking of any action contemplated by this Agreement, (iv) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger, (v) using reasonable best efforts to obtain (and to cooperate with each other in obtaining) any consent, approval of, waiver or any exemption by, any non-governmental third party, in each case, to the extent necessary, proper or advisable in connection with the Merger, and (vi) the execution and delivery of any reasonable additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement.
(b) Parent and the Company shall each keep the other apprised of the status of matters relating to the completion of the Merger and work cooperatively in connection with obtaining all required consents, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity undertaken pursuant to the provisions of this Section 6.5. In that regard, prior to the Closing, each party to this Agreement shall promptly (i) consult with the other parties to this Agreement with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to (and, in the case of correspondence, provide the other parties (or their counsel) with copies of) all notices, submissions or filings made by or on behalf of such party with any Governmental Entity or any other information supplied by or on behalf of such party to, or correspondence with, a Governmental Entity in connection with this Agreement and applicable Laws the Merger, and regulations (ii) inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from or to any Governmental Entity regarding the Merger, and permit the other parties the opportunity to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed communication or submission with any such Governmental Entity to the extent practicable; provided, however, that Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust consents or approvals. No party shall participate in any substantive meeting with any Governmental Entity in connection with this Agreement and the Merger unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate therein or thereat. Notwithstanding the foregoing and subject to the Confidentiality Agreement and the Joint Defense Agreement between Parent, the Company and their respective counsel dated July 19, 2016, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.5(b) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Notwithstanding anything to the contrary contained in this Section 6.5, materials provided pursuant to this Section 6.5 may be redacted (i) to remove references concerning the valuation of the Company and the Merger, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege concerns.
(c) The Company and Parent shall use reasonable best efforts to make or file with the appropriate Governmental Entity all filings, forms, registrations and notifications required to be filed to consummate the transactions contemplated hereby as soon as reasonably practicable Merger under any applicable Antitrust Law, and subsequent to such filings and subject to the terms and conditions of Section 6.5(b), the Company and Parent will, respond to inquiries from Governmental Entities, or provide any supplemental information that may be requested by Governmental Entities, in connection with filings made with such Governmental Entities. The Company and Parent shall file their notification and report forms under the HSR Act no later than ten Business Days after the date of this Agreement or when advisable (but in no event later than 20 Business Days after the date of this Agreement). The Company and in any event Parent shall file with the Canadian Commissioner of Competition (“Competition Commissioner”) a notification pursuant to subsection 114(1) of the Competition Act no later than ten Business Days after the Outside Datedate of this Agreement or when advisable (but in no event later than 20 Business Days after the date of this Agreement), and the Parent shall, within such time, make a submission to the Competition Commissioner in support of a request for an advance ruling certificate or, if the Competition Commissioner is not prepared to issue an advance ruling certificate, a no-action letter. Subject to Section 6.5(b) and the last sentence of this Section 6.5(c), in the event that the parties receive a request for information or documentary material pursuant to any Antitrust Law, including the HSR Act and/or Competition Act (a “Second Request”), the parties will use their respective reasonable best efforts to submit an appropriate response to, and to certify compliance with, such Second Request as promptly as practicable, and counsel for both parties will closely cooperate during the entirety of any such Second Request review process; provided, however, in no event shall Parent or the Company delay certification of compliance with any such Second Request beyond such date that is six months after the date hereof, except pursuant to a timing, settlement or similar agreement that is otherwise in accordance with the provisions of this Section 6.5(c). Notwithstanding anything herein to the contrary, neither Parent nor the Company, without the other party’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed) shall (i) using reasonable best efforts enter into any timing, settlement or similar agreement, or otherwise agree or commit to any arrangement, that would have the effect of extending, suspending, lengthening or otherwise tolling, beyond the date that is six months after the date hereof, the expiration or termination of the waiting period applicable to the Merger under the HSR Act or, (ii) enter into any timing or similar agreement, or otherwise agree or commit to any arrangement, that would bind or commit the parties not to complete the Merger (or that would otherwise prevent or prohibit the parties from completing the Merger) prior to any date that is after the date that is six months from the date hereof.
(d) Notwithstanding anything to the contrary set forth in this Agreement, Parent and the Company shall, if required to permit the satisfaction of the conditions set forth in Section 7.1(b) and Section 7.1(c) as promptly as practicable, but subject to the last sentence of this Section 6.5(d)), (i) propose, negotiate, commit to, effect and agree to, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, holding separate, and other disposition of the businesses, assets, properties, products, product lines, and equity interests of Parent, the Company, and their respective Subsidiaries and take such action or actions that would in the aggregate have a similar effect, (ii) create, terminate, or divest relationships, ventures, contractual rights or obligations of Parent, the Company or their respective Subsidiaries, and (iii) otherwise take or commit to take any action that would limit Parent’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, products, product lines or properties of the Parent or Company (including any of their respective Subsidiaries); provided, that any such sales, divestitures, licenses, holdings, dispositions, restrictions, changes or similar effects are conditioned upon and become effective only from and after the Effective Time; provided, however, that nothing contained in this Agreement shall require Parent or the Company to take, or cause to be taken, the actions necessary or commit to take, or commit to cause the conditions to Closing set forth in Article VII to be satisfiedtaken, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applicationsany divestiture, noticeslicense, petitionshold separate, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings sale or other proceedings)disposition (A) that would constitute a Triggering Divestiture or (B) of, or with respect to, Parent’s “CINTAS” trademark or trade name.
(be) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each In furtherance and not in limitation of the Companycovenants of the parties contained in this Section 6.5, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with if any filing administrative or submission and in connection with any investigation judicial action or other inquiryproceeding, including any proceeding initiated by any a private party, is instituted (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of to be instituted) challenging the transactions contemplated hereby, (iii) permit the other parties, Merger or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to transaction contemplated by this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Antitrust Law, each of the Company, Company and Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, shall use its reasonable best efforts to resolve contest and resist any such objections action or challenges as such Governmental Entity proceeding and to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law so as to permit overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (Merger; provided, that Parent shall bear all costs and in expenses associated with contesting or resisting any event no later than the Outside Date)such action or proceeding.
Appears in 2 contracts
Samples: Merger Agreement (G&k Services Inc), Merger Agreement (Cintas Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, the actions all appropriate action, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby as soon as reasonably practicable after by this Agreement. Without limiting the date foregoing, Parent, Purchaser and the Company shall cooperate with one another (A) in promptly determining whether any filings are required to be or should be made or consents, approvals, Permits or authorizations are required to be or should be obtained under any Law or whether any consents, approvals or waivers are required to be or should be obtained from other parties to Contracts or instruments material to the Company’s business in connection with the consummation of the transactions contemplated by this Agreement and (B) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any consents, Permits, authorizations, approvals or waivers required to be made or that the Parent determines should be made.
(b) Without limiting the generality of anything contained in any event no later than the Outside Date)this Section 5.5, including each party hereto shall: (i) using give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding and (iii) promptly inform the other parties of any communication to or from any Governmental Entity regarding the Offer or the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding (but giving the other party reasonable prior notice of such meeting) and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding. The parties shall use their respective reasonable best efforts to takeresolve any objections that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby. Subject to the terms and conditions of this Agreement, or cause to be taken, the actions necessary each party shall use its reasonable best efforts to cause the conditions Closing to Closing set forth in Article VII to be satisfied, (ii) preparing and filing occur as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings practicable. The Company and other documents Parent will cooperate and use their respective reasonable best efforts to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated waivers required by this Agreement, third persons so that all Company Permits and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each Contracts of the Company, Parent Company and Merger Sub shall, the Company Subsidiaries will remain in connection with the efforts referenced above to obtain all requisite approvals, clearances full force and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable effect after the date of this Agreement (and in any event no later than the Outside Date)Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (North American Galvanizing & Coatings Inc), Merger Agreement (Azz Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreementhereof, including Section 6.1, Section 6.4(b), and Section 6.4(c), each of the Company, Parent the Buyer and Merger the Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including including:
(i) using reasonable best efforts to takeobtaining from any Governmental Entity or any other third party any consents, or cause to be takenlicenses, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedpermits, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applicationswaivers, noticesapprovals, petitions, filings and other documents and to obtain as promptly as practicable all consentsauthorizations, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated or orders required to be obtained or made by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, the Buyer or any of their respective Subsidiaries (including the Acquisition Sub) in connection with the efforts referenced above to obtain all requisite approvalsauthorization, clearances execution and authorizations for delivery of this Agreement and the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any consummation of the transactions contemplated hereby;
(ii) making all necessary filings, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with and thereafter making any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entityrequired submissions, with respect to this Agreement or and the Merger)Merger required under the Exchange Act, (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with and any other Person and (v) to the extent permitted by such Governmental Entity applicable federal or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.state securities laws;
(ciii) If any objections are asserted filing within 10 Business Days following the date of this Agreement, a Notification and Report Form as required under the HSR Act with respect to the transactions contemplated hereby by this Agreement; and
(iv) executing and delivering any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with these duties, the Company, the Buyer and the Acquisition Sub shall cooperate with each other, including by providing copies of all such documents to outside counsel for the non-filing party prior to filing and, if requested, accepting reasonable additions, deletions or changes suggested in connection therewith. The Company, the Buyer and the Acquisition Sub shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable law in connection with the transactions contemplated by this Agreement.
(b) Subject to the terms hereof, the Company, the Buyer and the Acquisition Sub agree, and shall cause each of their respective Subsidiaries, to cooperate and to use their respective reasonable best efforts to obtain any government clearances or approvals required under the HSR Act. Without limiting the generality of the foregoing, the Company, the Buyer and the Acquisition Sub agree as follows:
(i) to use their reasonable best efforts to achieve substantial compliance, as promptly as practicable, with any request for additional information and documentary material (“Second Request”) issued by the Antitrust Division of the U.S. Department of Justice (“DOJ”) or the Federal Trade Commission (“FTC”), and to any other government requests for information under any applicable Law federal or if state law, regulation or decree designed to prohibit, restrict or regulate actions taken for the purpose or with the effect of monopolizing or restraining trade (collectively, “Antitrust Laws”);
(ii) to contest and resist any suit is instituted by action, including any Governmental Entity legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) (an “Antitrust Order”) that restricts, prevents or prohibits the consummation of the Merger or any private other transactions contemplated by this Agreement under any Antitrust Law;
(iii) to consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to outside counsel for the other parties in advance, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party challenging hereto in connection with proceedings under or relating to any Antitrust Law; and
(iv) to keep counsel for the other party informed of any and all substantive communications with the DOJ, FTC or any other U.S. or state governmental entity (collectively, “Antitrust Authorities”) that pertain to the review or approval of the Merger under any Antitrust Laws, and to allow the other party to participate, to the extent permissible under applicable laws and regulations, in any meetings with the Antitrust Authorities.
(c) In addition to the foregoing, the Buyer and the Acquisition Sub 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 otherwise, the sale, divestiture or disposition of such assets or businesses of the Buyer or, effective as of the Effective Time, the Surviving Corporation, or their respective Subsidiaries, or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the transactions contemplated hereby as violative businesses, services or assets of the Buyer, the Surviving Corporation or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any applicable LawAntitrust Order, each which would have the effect of preventing or delaying the Effective Time beyond the Outside Date. For the avoidance of doubt, the Buyer shall take any and all actions necessary in order to ensure that (i) no requirement for a waiver, consent or approval of the Antitrust Authorities or other Governmental Entity, (ii) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, and (iii) no other matter relating to any Antitrust Law or regulation would preclude consummation of the Merger by the Outside Date. Notwithstanding anything to the contrary in this Agreement, the Buyer and the Acquisition Sub shall not be required to (and the Company shall not) become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to divest, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change assets or businesses of the Company, Parent and Merger Sub shallthe Buyer, subject or any of their subsidiaries if such actions would result in, or would be reasonably likely to Section 6.18 result in, individually or in the event aggregate, a Company Material Adverse Effect; provided that any requirement to sell, to divest, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change assets or businesses of the Buyer or its Subsidiaries shall be deemed to result in a Company Material Adverse Effect for purposes of this Section 6.4(c) if such action with respect to a comparable amount of assets or businesses of the Company and its Subsidiaries would be reasonably likely, in the aggregate, to have a Company Material Adverse Effect.
(d) Each of the Company, the Buyer and the Acquisition Sub shall give (or shall cause their respective Subsidiaries to give) any Transaction Litigationnotices to third parties, use its and use, and cause their respective Subsidiaries to use, their commercially reasonable best efforts to resolve obtain any such objections or challenges as such Governmental Entity or private third-party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)consents.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Option Care Inc/De), Merger Agreement (Walgreen Co)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, the actions all appropriate action, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby as soon as reasonably practicable after by this Agreement. Without limiting the date of this Agreement (and in any event no later than the Outside Date)foregoing, including (i) using each of the Company, Parent and Merger Sub shall use its reasonable best efforts to takemake promptly any required submissions under the HSR Act which the Company or Parent determines should be made, or cause in each case, with respect to be taken, the actions necessary to cause Merger and the conditions to Closing set forth in Article VII to be satisfiedtransactions contemplated hereby, (ii) preparing and filing neither the Company nor Parent (including their respective Subsidiaries) shall engage in any transaction that would reasonably be expected to prevent or materially delay the obtaining of any regulatory approval that is required as promptly as practicable all documents a condition to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this AgreementClosing under Article VI, and (iii) taking Parent, Merger Sub and the reasonable steps as may Company shall cooperate with one another (A) in promptly determining whether any filings are required to be necessary or advisable should be made or consents, approvals, permits or authorizations are required to make all necessary filings be or should be obtained under any other federal, state or foreign Law or regulation or whether any consents, approvals or waivers are required to be or should be obtained from other parties to loan agreements or other contracts or instruments material to the Company’s business in connection with the consummation of the transactions contemplated by this Agreement and (B) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain all timely any such consents, clearances, waivers, licenses, orders, registrationspermits, authorizations, approvals or waivers; provided that obtaining the consents, approvals, permits and permits authorizations specified in clause (including providing all necessary information and documentary material and providing personnel iii) shall not be a condition to closing the transactions contemplated by this Agreement except as necessary to attend any regulatory meetings, hearings or other proceedings)expressly provided in Article VI.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each Each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyin Section 5.05(a), use its reasonable best efforts to (i) cooperate in all respects with each subject to applicable law, permit the other party or the other party’s outside counsel to review in connection with advance any filing or submission proposed written communication between it and in connection with any investigation or other inquiry, including any proceeding initiated by any private partyGovernmental Entity, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the each other parties of any communication (including the initiation of any proceedingor other correspondence or memoranda) received by such party from from, or given by such party to, the Department of Justice (“DOJ”), the Federal Trade Commission (“FTC”) or any other Governmental Entity and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, (iii) permit consult with each other in advance to the other partiesextent practicable of any meeting or conference with the DOJ, the FTC or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any a private party, with any other Person Person, and (v) to the extent permitted by the DOJ, the FTC or such other applicable Governmental Entity or other Person, give the other parties party the opportunity to attend and participate in such meetings, meetings and conferences, conference callsand (iv) furnish each other with copies of all correspondence, discussions filings and communications. Notwithstanding written communications between them or their Subsidiaries or Affiliates on one hand, and any such Governmental Entity or its respective staff on the foregoingother hand, with respect to this Agreement and the obligations set forth in this Section 6.5(bMerger, except that (A) shall any materials concerning Parent’s valuation of the Company or the Company’s valuation of the transaction may be redacted and (B) any proprietary information of one party not apply previously disclosed to any Transaction Litigationthe other party may be disclosed only to the other party’s outside counsel, which is at the subject option of Section 6.18the disclosing party.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth Nothing in this Agreement as soon as reasonably practicable after the date shall obligate Parent, Merger Sub or any of this Agreement their respective Subsidiaries or Affiliates to agree (and i) to limit in any event no later than manner whatsoever or not to exercise any rights of ownership of any securities (including the Outside DateShares), or to divest, dispose of or hold separate any securities or all or a portion of their respective businesses, assets or properties or of the business, assets or properties of the Company or any of its Subsidiaries or (ii) to limit in any manner whatsoever the ability of such entities (A) to conduct their respective businesses or own such assets or properties or to conduct the businesses or own the properties or assets of the Company and its Subsidiaries or (B) to control their respective businesses or operations or the businesses or operations of the Company and its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Cuno Inc), Merger Agreement (3m Co)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent parties hereto shall cooperate with the other parties and Merger Sub use (and shall use its cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedsatisfied as promptly as reasonably practicable and to consummate and make effective, (ii) in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including preparing and filing as promptly as practicable and fully all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to documents, (ii) obtain as promptly as practicable all approvals, consents, clearancesregistrations, waivers, licenses, orders, registrationsPermits, authorizations, approvals orders and permits other confirmations from any Governmental Entity necessary, proper or advisable to consummate the transactions contemplated by this Agreement, and (iii) taking execute and deliver any additional instruments necessary to consummate the reasonable steps as may be necessary Merger and the other transactions contemplated by this Agreement and (iv) defend or advisable contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by this Agreement, in the case of each of clauses (i) through (iv), other than with respect to make all necessary filings and obtain all such consentsfilings, clearancesnotices, waiverspetitions, licenses, ordersstatements, registrations, authorizationssubmissions of information, approvals applications and permits (including providing all necessary information other documents, approvals, consents, registrations, Permits, authorizations and documentary material other confirmations relating to Regulatory Laws, which are the subject of Section 6.03(c) and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedingsSection 6.03(d).
(b) To In furtherance and not in limitation of the extent permissible foregoing, the Company and Parent shall each use its reasonable best efforts to (i) take all action necessary to ensure that no “fair price”, “moratorium”, “control share acquisition” or other similar antitakeover statute or similar statute or regulation (collectively, “Takeover Laws”) is or becomes applicable to any of the transactions contemplated by this Agreement and refrain from taking any actions that would cause the applicability of such Takeover Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the transactions contemplated by this Agreement, take all action necessary to ensure that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the transactions contemplated hereby.
(c) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and make any filing required under any other applicable Regulatory Law with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable and advisable following the date hereof (which, in the case of the Notification and Report Form pursuant to the HSR Act, shall be no later than ten (10) Business Days from the date hereof and, in the case of all other filings under any other Regulatory Law, shall be as promptly as reasonably practicable following the date hereof, or, in each case, as otherwise agreed to by the Company and Parent), (ii) supply as promptly as practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act or any rule, regulation other applicable Regulatory Law and (iii) use its reasonable best efforts to cause the expiration or restriction of any Governmental Entity, each termination of the Company, Parent applicable waiting periods under the HSR Act and Merger Sub shall, in connection with the efforts referenced above any other applicable Regulatory Laws and to obtain all requisite approvalsconsents under any Regulatory Laws that may be required by the FTC, clearances DOJ or any Governmental Entity with competent jurisdiction, so as to enable the parties hereto to consummate the Merger and authorizations the other transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each party hereto shall use its reasonable best efforts to resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Regulatory Law, including (A) defending any Action challenging this Agreement or the consummation of the transactions contemplated hereby to which it is a party (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed), (B) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Entity or with any other Person, (C) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries and (D) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries, in each case, to the extent necessary to obtain all consents that may be required under the HSR Act or any other applicable Regulatory Laws or to resolve any objections asserted by any Governmental Entity with competent jurisdiction. Nothing in this Section 6.03 shall (W) require Parent or Merger Sub to sell, divest, convey or hold separate or otherwise take any other action (and the Company will not undertake any such action without Parent’s prior written consent) that limits Parent’s and its Subsidiaries’ freedom of action with respect to, or their ability to retain, particular products, assets or businesses of Parent or the Company or their respective Subsidiaries, or agree to take any such action, other than, solely in respect of products, assets or businesses of the Company (and not, for the avoidance of doubt, any products, assets, or businesses of Parent), only to the extent that such action would not reasonably be expected to impact in any material respect the expected benefits to Parent and its Subsidiaries, taken as a whole, of the transactions contemplated hereby, (X) require Parent, the Company or their respective Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing, (Y) require any of the parties to this Agreement to compensate any third party, commence or participate in litigation or offer or grant any accommodation (financial or otherwise) to any third party to obtain any such consent or approval or (Z) permit the Company or any of its Subsidiaries to take or agree to any action or other matter pursuant to this Section 6.03 referred to in clauses (B)-(D) or (X) above without Parent’s prior written consent, not to be unreasonably withheld. Other than with respect to the payment of all filing fees in connection therewith, which will be borne solely by Parent, the parties shall each bear their own costs and expenses of preparing such notifications and filings, including the fees of their respective legal counsel.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission with a Governmental Entity by any Person in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Entity relating to the transactions contemplated by this Agreement, including any proceeding initiated by any a private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby hereto informed in all material respects and promptly inform the other parties on a reasonably timely basis of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, the FTC, the DOJ or any other Governmental Entity and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated herebyby this Agreement, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Applicable Laws relating to the exchange of information, all of and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to such party, the other parties hereto and any of its their respective Subsidiaries, which as the case may be, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion filings or communication with, any such Governmental Entity or, submissions in connection with any proceeding by any a private party, with in each case regarding any other Person of the transactions contemplated hereby (it being understood that certain documents including those submitted under Item 4(c) or 4(d) of the Notification and Report Form pursuant to the HSR Act may be subject to reasonable redactions), and (viv) to the extent practicable and permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Personprivate party, as the case may be, give the other parties hereto the opportunity to attend and participate in such meetingsany meetings and conferences. Any party may, conferencesas it deems advisable and necessary, conference calls, discussions and communications. Notwithstanding reasonably designate any competitively sensitive material provided to the foregoing, the obligations set forth in other parties under this Section 6.5(b6.03(d) as “outside counsel only.” Such materials and the information contained therein shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect be given only to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any outside legal counsel of the transactions contemplated hereby as violative of any applicable Lawrecipient and will not be disclosed by such outside counsel to employees, each officers, or directors of the Companyrecipient, Parent and Merger Sub shall, subject to Section 6.18 unless express written permission is obtained in advance from the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation source of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)materials.
Appears in 2 contracts
Samples: Merger Agreement (Entegris Inc), Merger Agreement (Atmi Inc)
Reasonable Best Efforts. (a) Subject to the other terms and conditions of this Agreement, each of the Company, Parent and the Merger Sub shall use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement, the Merger Agreement and applicable Laws and regulations Law to consummate the Merger and the other transactions contemplated hereby by this Agreement and the Merger Agreement as soon promptly as reasonably practicable after following the date of this Agreement. In furtherance and not in limitation of the foregoing, each of the Company and Parent agrees to make, as promptly as practicable following the date of this Agreement (and in any event no not later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be takenfifteen Business Days following the date of this Agreement, the actions necessary to cause appropriate filings and notifications required by the conditions to Closing set forth in Article VII to be satisfied, Transaction Approvals listed on Schedule 5.3(a) and (ii) preparing 20 Business Days following the date of this Agreement, all other Transaction Approvals and filing other necessary filings and notifications with any other Governmental Entity with respect to the transactions contemplated by this Agreement and the Merger Agreement (except with respect to the Bermuda Monetary Authority, which filings and notifications will be in accordance with customary practice) and to supply as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary any additional information and documentary material that may be reasonably requested under such requirements. The Company and providing personnel as necessary Parent will each request early termination of the waiting period with respect to attend any regulatory meetings, hearings or other proceedings)the Merger under the HSR Act.
(b) To the extent permissible under applicable Law and in each case regarding the Merger or any rule, regulation of the other transactions contemplated by this Agreement or restriction of any Governmental Entitythe Merger Agreement, each of the Company, Company and Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvalsthe Transaction Approvals from Governmental Entities, clearances and authorizations for to the transactions contemplated herebyextent legally permitted, use its reasonable best efforts to to: (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any a private party, ; (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties party of any material communication (including the initiation of any proceeding) received by such party from from, or given by such party to, any Governmental Entity and of any material communication received from any private party, in each case, or given in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, proceeding by a private party; (iii) permit give the other partiesparty, or the other parties’ party’s legal counsel, reasonable opportunity, in advance of the transmission thereof, to review and comment on any filingmaterial communication (and shall address or include, submission or as applicable, in such communication comments reasonably proposed by the other communication party) given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyto, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, meeting or conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any a private party, with any other Person Person; and (viv) to the extent permitted unless prohibited by such a Governmental Entity or other Person, give the other parties party and its legal counsel the opportunity to attend and participate in such meetings, meetings and conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If Subject to Section 5.4(c), (i) Parent shall give the Company the reasonable opportunity to participate in the defense of any objections are asserted Legal Proceedings against Parent or its directors or officers relating to this Agreement and the transactions contemplated hereby, and (ii) the Company shall give Parent the reasonable opportunity to participate in the defense of any Legal Proceedings against the Company or its directors or officers relating to this Agreement and the transactions contemplated hereby.
(d) In connection with subsections (a), (b) and (c) above, except as would not or would not reasonably be expected to have a Material Adverse Effect on Parent and its Subsidiaries or the Company and its Subsidiaries, in each case, taken as a whole after giving effect to the Merger (such Material Adverse Effect, a “Regulatory Material Adverse Effect”), (i) neither party nor any of its Subsidiaries shall be required to sell, divest, hold separate, or otherwise dispose of any of its or its Subsidiaries, respective businesses, product lines or assets, (ii) Parent shall not be required to conduct the business of Parent and its Subsidiaries (including the Company and its Subsidiaries) taken as a whole after giving effect to the Merger in a specified manner and (iii) neither party, as applicable, shall be required to agree to take any action or agree to any restriction, limitation or condition.
(e) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any necessary approval or consent from any Person (other than a Governmental Entity) with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity Merger, neither Parent or any private party challenging of its Subsidiaries nor the Company or any of its Subsidiaries shall pay or commit to pay to such Person whose necessary approval or consent is being solicited any material amount of cash or other consideration, make any material commitment or incur any material liability or other material obligation due to such Person, as measured with respect to Parent and its Subsidiaries (including the transactions contemplated hereby Company and its Subsidiaries taken as violative of any applicable Lawa whole after giving effect to the Merger), in each case, without the prior written consent of the Company, Parent other party.
(f) From and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than Agreement, the Outside Date)parties shall use their respective reasonable best efforts to cause each of the Company’s Insurance Subsidiaries to maintain a Financial Strength Rating from Standard & Poor’s Corporation of at least an “A”.
Appears in 2 contracts
Samples: Merger Agreement (ALTERRA CAPITAL HOLDINGS LTD), Merger Agreement (Markel Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent parties hereto shall cooperate with the other parties and Merger Sub use (and shall use its cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedsatisfied as promptly as reasonably practicable and to consummate and make effective, (ii) in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including preparing and filing as promptly as practicable and fully all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to documents, (ii) obtain as promptly as practicable all approvals, consents, clearancesregistrations, waivers, licenses, orders, registrationspermits, authorizations, approvals orders and permits other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the transactions contemplated by this Agreement, and (iii) taking execute and deliver any additional instruments necessary to consummate the reasonable steps as may be necessary Merger and the other transactions contemplated by this Agreement and (iv) defend or advisable contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by this Agreement, in the case of each of clauses (i) through (iv), other than with respect to make all necessary filings and obtain all such consentsfilings, clearancesnotices, waiverspetitions, licenses, ordersstatements, registrations, authorizationssubmissions of information, approvals applications and permits (including providing all necessary information other documents, approvals, consents, registrations, permits, authorizations and documentary material other confirmations relating to Regulatory Laws, which are the subject of Section 6.03(c) and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedingsSection 6.03(d).
(b) To In furtherance and not in limitation of the foregoing, the Company and Parent shall each use its reasonable best efforts to (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the transactions contemplated by this Agreement and refrain from taking any actions that would cause the applicability of such Takeover Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the transactions contemplated by this Agreement, take all action necessary to ensure that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the transactions contemplated hereby.
(c) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Regulatory Law with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable and advisable following the date hereof, (ii) supply as promptly as practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Regulatory Law and (iii) take or cause to be taken all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Regulatory Laws and to obtain all consents under any Regulatory Laws that may be required by the FTC, DOJ or any Governmental Entity with competent jurisdiction, so as to enable the parties hereto to consummate the Merger and the other transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each party hereto shall take or cause to be taken all actions necessary to resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Regulatory Law, including (A) defending any Action challenging this Agreement or the consummation of the transactions contemplated hereby (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed), (B) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Entity or with any other person, (C) selling, divesting, conveying or holding separate or otherwise taking any other action that limits Parent’s and its Subsidiaries’ freedom of action with respect to, or their ability to retain, particular products, assets or businesses of Parent or the Company or their respective Subsidiaries, or agreeing to take any such action, (D) terminating existing relationships, contractual rights or obligations of Parent or the Company or their respective Subsidiaries and (E) effectuating any other change or restructuring of Parent or the Company or their respective Subsidiaries, in each case, to the extent permissible necessary to obtain all consents that may be required under applicable Law the HSR Act or any rule, regulation other applicable Regulatory Laws or restriction of to resolve any objections asserted by any Governmental EntityEntity with competent jurisdiction; provided, each of however, that Parent and its Subsidiaries (i) shall not be required to take any action or propose or enter into any divestiture, hold separate, or other consent order or consent decree or agreement with any Governmental Entity that would reasonably be expected to be materially adverse to the Company, Parent and Merger Sub shalltheir respective Subsidiaries, taken as a whole; and (ii) may determine, in connection their sole discretion, to sell, divest or dispose of certain assets, properties and businesses of Parent (or its Subsidiaries or Affiliates) (in lieu of or in combination with selling, divesting or disposing of certain assets, properties, or businesses of the Company and its Subsidiaries), in order to avoid the entry of, or to effect the dissolution of, any decree, order, judgment, injunction, temporary restraining order or other Order in any Litigation. Nothing in this Section 6.03 shall require the Company or its Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing, or permit the Company or any of its Subsidiaries to take or agree to any action or other matter pursuant to this Section 6.03 referred to in clauses (B)-(E) above without Parent’s prior written consent (which consent shall be granted in accordance with the efforts referenced above immediately preceding sentence), including that (but without limiting Parent’s obligations pursuant to obtain all requisite approvalsthe immediately preceding sentence) if any products, clearances and authorizations for businesses or assets of the transactions contemplated herebyCompany or Parent or their respective Subsidiaries are to be sold, divested or disposed of pursuant to this Section 6.03, Parent shall have the right to select the products, businesses and/or assets to be sold, divested or disposed of.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission with a Governmental Entity by any person in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Entity relating to the transactions contemplated by this Agreement, including any proceeding initiated by any a private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby hereto informed in all material respects and promptly inform the other parties on a reasonably timely basis of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, the FTC, the DOJ or any other Governmental Entity and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated herebyby this Agreement, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Applicable Laws relating to the exchange of information, all of and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to such party, the other parties hereto and any of its their respective Subsidiaries, which as the case may be, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion filings or communication with, any such Governmental Entity or, submissions in connection with any proceeding by any a private party, with in each case regarding any other Person of the transactions contemplated hereby (it being understood that certain documents including those submitted under Item 4(c) or 4(d) of the Notification and Report Form pursuant to the HSR Act may be subject to reasonable redactions), and (viv) to the extent practicable and permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Personprivate party, as the case may be, give the other parties hereto the opportunity to attend and participate in such meetings, any meetings and conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 2 contracts
Samples: Merger Agreement (Community Health Systems Inc), Merger Agreement (Health Management Associates, Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and the other Transactions as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or otherwise providing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals and permits contemplated by this Agreementpermits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other Transactions and (iiiii) taking the reasonable all steps as may be necessary or advisable necessary, subject to make all necessary filings and the limitations in this Section 6.8, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersregistrations, registrationspermits, authorizations, approvals orders and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)approvals.
(b) To In connection with and without limiting the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Companyparties shall give any required notices to third parties, Parent and Merger Sub shalleach of the parties shall use, in connection with the efforts referenced above and cause each of their respective Subsidiaries and Affiliates to obtain all requisite approvalsuse, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each obtain any third-party Consents that are necessary, proper or advisable to consummate the Merger. Each of the parties will furnish to the other party such necessary information and reasonable assistance as the other may request in connection with the preparation of any filing required filings or submission and in connection submissions with any investigation or other inquiryGovernmental Entity and will cooperate in responding to any inquiry from a Governmental Entity, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform informing the other parties of such inquiry, consulting in advance before making any communication (including the initiation presentations or submissions to a Governmental Entity, and supplying each other with copies of any proceeding) received by such all material correspondence, filings or communications between either party from and any Governmental Entity and any material communication received from any private partywith respect to this Agreement, in each casecase as permitted under applicable Law. To the extent reasonably practicable, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person parties and to receive final versions of the same (it being understood that each party shall, without limitation, their Representatives shall have the right to review in advance, subject to applicable Laws relating to advance and each of the exchange of informationparties will consult the others on, all of the information relating to such party, the other and any each of its respective Subsidiaries, which their Affiliates that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties shall, nor shall they permit their respective Representatives to, participate independently in any proceeding by meeting or engage in any private party, substantive conversation with any Governmental Entity in respect of any filing, investigation or other Person and (v) inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by such Governmental Entity or other Personapplicable Law, give without giving the other parties the opportunity to attend and or participate (whether by telephone or in person) in any such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18meeting with such Governmental Entity.
(c) If In connection with obtaining any objections are asserted Consent from any Person with respect to the transactions contemplated hereby Merger, neither the Company nor any Subsidiary of the Company shall pay or commit to pay to any Person whose Consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person without the prior written consent of Parent. The parties shall cooperate to obtain such Consents. Parent shall, or shall cause one of its Subsidiaries (including the Surviving Company) to either repay, refinance or assume any Indebtedness of the Company or Parent or any of their respective Subsidiaries that is outstanding immediately prior to the Effective Time so that the Transactions do not result in a default under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Indebtedness.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Broadmark Realty Capital Inc.), Merger Agreement (Ready Capital Corp)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, the Company and Parent shall each of the Company, Parent and Merger Sub shall use its their reasonable best efforts to promptly (i) take, or cause to be taken, the actions all actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any actions, non-actions, clearances, waivers, consents, approvals, authorizations, licenses, permits or orders required to be obtained by the Company, Parent or any of their respective Subsidiaries in connection with the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and obtain from third parties all waivers, consents, approvals and authorizations that are necessary or advisable in connection with the consummation of the transactions contemplated hereby; (iii) make all necessary registrations and filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) any applicable federal or state securities Laws, (B) any applicable competition, antitrust or investment Laws and regulations (C) any other applicable Law; provided, however, that the Company and Parent will cooperate with each other in connection with the making of all such filings, including providing copies of all such filings and attachments to outside counsel for the non-filing party; (iv) furnish all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (v) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, any Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case relating to the transactions contemplated by this Agreement; (vi) permit the other parties to review any material communication delivered to, and consult with the other party in advance of any meeting or conference with, any Governmental Entity relating to the transactions contemplated by this Agreement or in connection with any proceeding by a private party relating thereto, and give the other party the opportunity to attend and participate in such meetings and conferences (to the extent permitted by such Governmental Entity or private party); (vii) avoid the entry of, or have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, including defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby; and (viii) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby by this Agreement. No parties to this Agreement shall consent to any voluntary delay of the Closing at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld. Without limiting this Section 6.11, Parent agrees to take, or to cause to be taken, any and all steps and to make any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition, or trade regulation Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event event, no later than the Outside Date), including (i) using reasonable best efforts to takeproposing, negotiating, committing to, and effecting, by consent decree, hold separate order, or cause to be takenotherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Parent (or its Subsidiaries) or the Surviving Company or otherwise taking or committing to take actions necessary that limit Parent’s or its Subsidiaries’ freedom of action with respect to, or their ability to cause the conditions to Closing set forth in Article VII to be satisfiedretain, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the businesses, product lines or assets of Parent (or its Subsidiaries) or the Surviving Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, as may be required in connection with any pending or threatened litigation regarding any of order to avoid the transactions contemplated hereby, (iii) permit the other partiesentry of, or to effect the other parties’ legal counseldissolution of, to review any filinginjunction, submission temporary restraining order, or other communication given by it to order in any Governmental Entity orsuit or proceeding, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, which would otherwise have the right to review in advance, subject to applicable Laws relating to effect of preventing or delaying the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18Closing.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 2 contracts
Samples: Merger Agreement (PennantPark Floating Rate Capital Ltd.), Merger Agreement (MCG Capital Corp)
Reasonable Best Efforts. (a) The Parties shall each cooperate with the other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to promptly (i) take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable to consummate and make effective the Transactions as soon as practicable, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Third Party necessary, proper or advisable to consummate the Transactions, and (iii) execute and deliver such documents, certificates and other papers as a Party may reasonably request to evidence the other Party’s satisfaction of its obligations hereunder. Subject to Applicable Laws relating to the terms exchange of information and conditions in addition to Section 5.01(d), the Parties shall have the right to review in advance, and, to the extent practicable, each will consult the other on, any information relating to the Company or the Buyer and its Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any Third Party and/or any Governmental Body in connection with the Transactions.
(b) Without limiting the foregoing, the Parties shall: (i) within five (5) Business Days of the date of this AgreementAgreement each make an appropriate filing pursuant to the HSR Act and each make (or, if applicable, the applicable Party shall make) any Foreign Antitrust Laws with respect to the Stock Purchase and as promptly as practicable file any other required submissions under the HSR Act and take any and all other actions necessary or appropriate to bring about the expiration or termination of any applicable waiting period under the HSR Act and any Foreign Antitrust Laws; and (ii) cooperate with one another (A) promptly to determine whether any other filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other Applicable Law, including any Foreign Antitrust Law and (B) promptly, and in any event within ten (10) Business Days, make any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations or approvals.
(c) Without limiting Section 5.01(a), each of the Company, Parent and Merger Sub shall Party shall:
(i) use its reasonable best efforts to takeavoid the entry of, or cause to be takenhave vacated or terminated, any Order that would restrain, prevent or delay the actions and to doClosing or the consummation of any of the Transactions, including defending through litigation or cause to be done, arbitration on the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and merits any claim asserted in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, court by any Person; and
(ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with avoid or eliminate each other party in connection with and every impediment under the HSR Act and any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated Foreign Antitrust Laws that may be asserted by any private party, Governmental Body with respect to the Transactions so as to enable the Closing to occur as soon as reasonably possible.
(iid) Each Party shall keep the other parties Party reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby Transactions and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, work cooperatively in connection with obtaining all required approvals or consents of any pending Governmental Body (whether domestic, foreign or threatened litigation regarding supranational). In that regard, each Party shall, to the extent permitted by Applicable Law and subject to all applicable privileges, including the attorney-client privilege, without limitation: (i) promptly notify the other Party of, and if in writing, furnish the other Party with copies of (or, in the case of material oral communications, advise the other orally of), any communications from or with any Governmental Body with respect to the Transactions, (ii) permit the other Party to review and discuss in advance, and consider in good faith the views of the transactions contemplated herebyother Party in connection with, any proposed written (or any material proposed oral) communication with any such Governmental Body, (iii) permit the other parties, or the other parties’ legal counsel, to review not participate in any filing, submission or other communication given by it to any Governmental Entity or, in connection meeting with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (such Governmental Body unless it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult consults with the other parties Party in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonBody, give gives the other parties the opportunity to attend and participate in thereat, (iv) furnish the other Party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted Governmental Body with respect to this Agreement, the transactions contemplated hereby under any applicable Law Ancillary Documents and the Transactions, and (v) furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of necessary filings or if any suit is instituted by any Governmental Entity or any private party challenging any submissions of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject information to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Body.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Veeco Instruments Inc), Stock Purchase Agreement (Bruker Corp)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions and to do, or cause its Affiliates (including Parent’s direct and indirect parent companies and their Affiliates) to be done, the things necessary, proper or advisable under this Agreement cooperate and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using use reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective, in the actions necessary to cause most expeditious manner practicable, the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing Merger and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and the other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, including using reasonable best efforts to accomplish the following:
(i) obtain all required consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including as required under any Material Contract;
(ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and (iii) taking the reasonable authorizations from Governmental Entities, make all necessary registrations, declarations and filings and take all steps as may be necessary to obtain an approval or advisable waiver from, or to make all necessary avoid any Action by, any Governmental Entity, including making as soon as practicable after the date of this Agreement, filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits under the HSR Act;
(including providing all necessary iii) provide as promptly as possible any additional information and documentary material materials that may be reasonably requested pursuant to the HSR Act;
(iv) vigorously resist and providing personnel as contest any Action, including administrative or judicial Action, and seek to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the Merger and the other transactions contemplated hereby, including by vigorously pursuing all avenues of administrative and judicial appeal; and
(v) execute and deliver any additional instruments necessary to attend consummate the Merger and the other transactions contemplated hereby and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any regulatory meetingsof its Subsidiaries shall commit to the payment of any fee, hearings penalty or other proceedingsconsideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned).
(b) To the extent permissible under applicable Law or If any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection objections are asserted with the efforts referenced above respect to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyby this Agreement under the HSR Act or if any suit is instituted by any Governmental Entity or any private party challenging the transactions as violative of the HSR Act, each party shall use its reasonable best efforts to (iand shall cause its Affiliates, including Parent’s direct and indirect parent companies and their Affiliates, to use their respective reasonable best efforts to) resolve any such objection or challenge as such Governmental Entity or private party may have to the transaction so as to permit consummation of the transactions contemplated by this Agreement.
(c) Each of the parties hereto shall (and shall cause its Affiliates, including Parent’s direct and indirect parent companies and their Affiliates to) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, inquiry including any proceeding initiated by any a private party, party and they each shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing.
(iid) keep the other parties apprised of the status of matters Subject to applicable Law relating to completion the exchange of information, Parent and the transactions contemplated hereby and promptly Company shall each inform the other parties party of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, shall have the right to review in advance, subject to applicable Laws relating and to the exchange of informationextent practicable each shall consult with the other in connection with, all of the information relating to such partyParent or the Company, as the case may be, and any of its their respective Subsidiaries, which that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. In exercising the foregoing rights, each of Parent and the Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any Governmental Entity, the Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby.
(e) Notwithstanding anything to the contrary in this Agreement Section 5.6, the obligations of Parent and Merger Sub under this Section 5.6 include the obligation of Parent to, and to cause its Affiliates (including Parent’s direct and indirect parent companies) to: (i) sell or divest or agree to sell or divest any assets or businesses of Parent and its Subsidiaries, BI-LO Holding and its Subsidiaries and such Affiliates; (ii) agree to sell or divest any assets or businesses of the Merger), Company and its Subsidiaries contemporaneously with or subsequent to the Closing; (iii) permit the Company to sell or divest any assets or businesses of the Company or any of its Subsidiaries prior to the Closing; and (iv) consult with the other parties in advance of any meetinglicense, conference, conference call, discussion hold separate or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted enter into similar arrangements with respect to the transactions contemplated hereby assets of Parent and its Subsidiaries, BI-LO Holding and its Subsidiaries, the Company and its Subsidiaries and such Affiliates, in each case in exchange for obtaining the expiration of the waiting period under the HSR Act without further actions being taken or any applicable Law or if any suit is instituted by consent from any Governmental Entity or any private party challenging any of necessary to consummate the Merger and the other transactions contemplated hereby as violative hereby; provided, however, that Parent and its Affiliates shall not be required to take or consent to the taking of any applicable Lawsuch action that, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 individually or in the event of any Transaction Litigationaggregate, use its reasonable best efforts would reasonably be likely to resolve any such objections or challenges as such Governmental Entity or private party may have cause the Debt Financing to such transactions under such applicable Law so as to permit consummation of be unavailable at the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Closing.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or and advisable under this Agreement and applicable Laws and regulations to consummate and make effective, as promptly as practicable, the Offer, the Merger and the other transactions contemplated hereby by this Agreement, including using reasonable best efforts to accomplish the following: (i) that the Tender Offer Conditions and conditions set forth in Article VII are satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, and approvals from Governmental Entities and non-governmental third parties and the making of all necessary registrations, notices and filings (including filings with Governmental Entities) and (iii) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company and Parent shall (A) file as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than within 10 Business Days) with the Outside Date), including U.S. Federal Trade Commission (ithe “FTC”) using reasonable best efforts and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) the notification and report form (the “HSR Filing”) required under the HSR Act with respect to take, or cause to be takenthe Offer, the actions necessary to cause Merger and the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, and (iiiB) taking make, as promptly as practicable, all notifications and other filings required (1) under any applicable non-U.S. antitrust or competition laws (together with the HSR Filings, the “Antitrust Filings”) and (2) under any other applicable competition, merger control, antitrust or similar Law that the Company and Parent deem advisable or appropriate, in each case, with respect to the transactions contemplated by this Agreement and as promptly as practicable. The Antitrust Filings shall be in substantial compliance with the requirements of the Laws, as applicable. Subject to first having used all reasonable steps as may be necessary or advisable efforts to make all necessary filings and obtain all negotiate a resolution of any objections underlying such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings lawsuits or other legal proceedings), the Company and Parent shall use reasonable best efforts to defend and contest any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer, the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay, temporary restraining order, or preliminary injunction entered by any Governmental Entity vacated or reversed.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, The Company and Parent shall cooperate and consult with each of the Company, Parent and Merger Sub shall, other in connection with the efforts referenced above making of all such filings, notifications and any other material actions pursuant to obtain all requisite approvalsthis Section 6.03, clearances and authorizations subject to applicable Law, by permitting counsel for the transactions contemplated herebyother party to review in advance, use its reasonable best efforts to (i) cooperate and consider in all respects with each good faith the views of the other party in connection with with, any filing or submission proposed material written communication to any Governmental Entity and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep providing counsel for the other parties apprised party with copies of the status of matters relating to completion of the transactions contemplated hereby all filings and promptly inform the other parties of any communication (including the initiation of any proceeding) received submissions made by such party from and all correspondence between such party (and its advisors) with any Governmental Entity and any material communication other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from any private party, in each case, such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted (x) as necessary to comply with contractual arrangements, and (y) as necessary to address good faith legal privilege or confidentiality concerns. Neither party shall file any pending such document or threatened litigation take such action if the other party has reasonably objected (and not withdrawn its objection) to the filing of such document or the taking of such action on the grounds that such filing or action would reasonably be expected to either (i) prevent, materially delay or materially impede the consummation of the Offer, the Merger or the other transactions contemplated hereby or (ii) cause a condition set forth in Article VII or Tender Offer Conditions to not be satisfied in a timely manner. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of the other party.
(c) Each of the Company and Parent will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated hereby, by this Agreement. If the Company or Parent (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its their respective Subsidiaries, which appears in any filing made with, Affiliates) receives a request for additional information or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, documentary material from any such Governmental Entity orthat is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with any proceeding the transactions contemplated by any private partythis Agreement unless it so consults with the other party in advance and, with any other Person and (v) to the extent permitted not prohibited by such Governmental Entity or other PersonEntity, give gives the other parties party the opportunity to attend and participate participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in such meetings, conferences, conference calls, discussions connection with the transactions contemplated by this Agreement. In furtherance and communications. Notwithstanding not in limitation of the foregoing, the obligations set forth in this Section 6.5(b) shall not apply each party will use all reasonable efforts to any Transaction Litigation, which is the subject of Section 6.18.
(c) If resolve any objections are that may be asserted with respect to the transactions contemplated hereby by this Agreement under any applicable Law antitrust, competition or if trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any suit such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is instituted by any Governmental Entity in effect and that prohibits, prevents or any private party challenging any restricts consummation of the Offer, the Merger or the other transactions contemplated hereby as violative of any applicable Lawby this Agreement and to have such statute, each of the Companyrule, Parent and Merger Sub shallregulation, subject to Section 6.18 in the event of any Transaction Litigationdecree, use its reasonable best efforts to resolve any such objections judgment, injunction or challenges as such Governmental Entity other Order repealed, rescinded or private party may have to such transactions under such applicable Law made inapplicable so as to permit consummation of the transactions contemplated hereby by this Agreement.
(d) Notwithstanding anything herein to the contrary (including, without limitation, Section 6.03), no party is required to, and the Company may not, without the prior written consent of Parent, become subject to, consent or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or Order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, Parent, or any of their Affiliates in any manner which, individually or in the aggregate with all other such requirements, conditions, understandings, agreements and Orders could reasonably be expected to have a material adverse effect on (i) the combined business, financial condition or results of operations of Parent and its Subsidiaries taken as a whole or (ii) the online advertising business of the online services business of Parent combined with the CSS Business of the Company after the Closing. Notwithstanding anything in this Agreement to the contrary, the Company will, upon the request of Parent, become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or Order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, so long as such requirement, condition, understanding, agreement or Order is binding on the Company only in the event that the Closing occurs. Without the prior written consent of Parent (determined in its sole discretion), in no event shall the Company or Parent or any of their respective Subsidiaries or Affiliates pay any consideration to, amend or enter into any agreement with, any non-governmental third party to obtain any consent to the Merger or to otherwise comply with Section 6.03(e).
(e) The Company and its Board of Directors shall (i) use reasonable best efforts to ensure that no state takeover Law or similar Law is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) if any state takeover Law or similar Law becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms set forth in contemplated by this Agreement as soon as reasonably practicable after and otherwise to minimize the date effect of such Law on this Agreement (Agreement, the Offer, the Merger and in any event no later than the Outside Date)other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Greenfield Online Inc), Merger Agreement (Microsoft Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent parties hereto shall cooperate with the other parties and Merger Sub use (and shall use its cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedsatisfied as promptly as reasonably practicable and to consummate and make effective, (ii) in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including preparing and filing as promptly as practicable and fully all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to documents, (ii) obtain as promptly as practicable all approvals, consents, clearancesregistrations, waivers, licenses, orders, registrationspermits, authorizations, approvals orders and permits other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the transactions contemplated by this Agreement, and (iii) taking execute and deliver any additional instruments necessary to consummate the reasonable steps as may be necessary Merger and the other transactions contemplated by this Agreement and (iv) defend or advisable contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by this Agreement, in the case of each of clauses (i) through (iv), other than with respect to make all necessary filings and obtain all such consentsfilings, clearancesnotices, waiverspetitions, licenses, ordersstatements, registrations, authorizationssubmissions of information, approvals applications and permits (including providing all necessary information other documents, approvals, consents, registrations, permits, authorizations and documentary material other confirmations relating to Global Competition Laws, which are the subject of Section 7.02(b) and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedingsSection 7.02(c).
(b) To Each of the extent permissible under parties hereto agrees to use commercially reasonable efforts to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Global Competition Law with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable and advisable following the date hereof, and in the case of any filing pursuant to the HSR Act, no later than five (5) Business Days following the date hereof, (ii) supply as promptly as practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act or any rule, regulation other applicable Global Competition Law and (iii) take or restriction of any Governmental Entity, each cause to be taken all other actions necessary to cause the expiration or termination of the Company, Parent applicable waiting periods under the HSR Act and Merger Sub shall, in connection with the efforts referenced above any other applicable Global Competition Laws and to obtain all requisite approvalsconsents under any Global Competition Laws that may be required by the FTC, clearances DOJ or any Governmental Entity with competent jurisdiction, so as to enable the parties hereto to consummate the Merger and authorizations for the other transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each party hereto shall use commercially reasonable efforts to take or cause to be taken all actions necessary to resolve objections, if any, as may be asserted with respect to the transactions contemplated herebyby this Agreement under any Global Competition Law, including defending any Action challenging this Agreement or the consummation of the transactions contemplated hereby (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed) to the extent necessary to obtain all consents that may be required under the HSR Act or any other applicable Global Competition Laws or to resolve any objections asserted by any Governmental Entity with competent jurisdiction. Notwithstanding the foregoing, nothing in this Section 7.02 shall (i) require the Company or its Subsidiaries or Parent or its subsidiaries to take or agree to take any action with respect to their respective business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing (ii) permit, without Parent’s prior written consent (which consent shall be granted in accordance with the immediately preceding sentence), the Company or any of its Subsidiaries to take or agree to any action or other matter involving (1) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Entity or with any other person, (2) selling, divesting, conveying or holding separate or otherwise taking any other action that limits Company’s and its Subsidiaries’ freedom of action with respect to, or their ability to retain, particular products, assets or businesses of the Company or its Subsidiaries, or agreeing to take any such action, (3) terminating existing relationships, contractual rights or obligations of the Company or its Subsidiaries and (4) effectuating any other change or restructuring of the Company or its Subsidiaries, and provided that if any products, businesses or assets of the Company or its Subsidiaries are to be sold, divested or disposed of pursuant to this Section 7.02, Parent shall have the right to select the products, businesses and/or assets to be sold, divested or disposed of, (iii) require Parent to terminate existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries if such actions would reasonably be likely to result in the loss of annual revenues of Parent and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) in an amount in excess of $30 million in the twelve (12) month period immediately following the effectiveness of such action(s), or (iv) require Parent to effectuate any other change or restructuring of the Company or Parent or their respective Subsidiaries or sell, divest or dispose of any products, businesses or assets, license any asset, terminate any relationship or restructure any business operations, in each case, unless such change, restructuring, sale, divestiture, disposition, license or termination would reasonably be likely to result in the loss of annual revenues of Parent and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) in an amount in excess of $30 million in the twelve (12) month period immediately following the effectiveness of such action(s). Neither Parent nor the Company shall, nor shall they permit any of their respective Subsidiaries to, acquire or agree to acquire any business, Person or division thereof, or otherwise acquire or agree to acquire any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition would reasonably be expected to materially increase the risk of not obtaining the applicable clearance, approval, consent or waiver from any Governmental Entity with respect to the transactions contemplated by this Agreement.
(c) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission with a Governmental Entity by any person in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Entity relating to the transactions contemplated by this Agreement, including any proceeding initiated by any a private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby hereto informed in all material respects and promptly inform the other parties on a timely basis of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, the FTC, the DOJ or any other Governmental Entity and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated herebyby this Agreement, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to such party, the other parties hereto and any of its their respective Subsidiaries, which as the case may be, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion filings or communication with, any such Governmental Entity or, submissions in connection with any proceeding by any a private party, with in each case regarding any other Person of the transactions contemplated hereby (it being understood that certain documents including those submitted under Item 4(c) or 4(d) of the Notification and Report Form pursuant to the HSR Act may be reasonably designated Outside Counsel Only Material) and (viv) to the extent practicable and permitted by the FTC, the DOJ or such other applicable Governmental Entity or other Personprivate party, as the case may be, give the other parties hereto the opportunity to attend and participate in such meetings, any meetings and conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(cd) If In addition to, and not in limitations of the other provisions of this Section 7.02, promptly, and in any objections are asserted event within fifteen (15) Business Days following the date hereof, the Company will file or cause to be filed on a timely basis a reportable event notice with the PBGC in respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative and the Company shall promptly notify Parent of, and respond to any inquiries from, the Pension Benefit Guaranty Corporation regarding such reportable event notice filing. The Stockholder shall, or shall cause the Company to, provide Parent with copies of and reasonable opportunities to review such reportable event notice and any applicable Lawsubsequent correspondence with the PBGC. In the event that Parent provides comments to any draft correspondence with the PBGC, each the Parties to this Agreement shall consult in good faith regarding such comments prior to the Stockholder providing such correspondence to the PBGC.
(e) In addition to, and not in limitations of the other provisions of this Section 7.02, upon the reasonable written request of the Company, Parent and Merger Sub shallshall take commercially reasonable actions in connection with seeking any required filings, subject to Section 6.18 notices or consents with state banking departments or similar agencies required in the event connection with a change of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation control of the transactions contemplated hereby on Company or any Subsidiary of the terms set forth in this Agreement Company holding licenses as soon as reasonably practicable after the date a money transmitter or seller of this Agreement (and in any event no later than the Outside Date)checks.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall Parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things that are necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the transactions contemplated hereby as soon as reasonably practicable after most expeditious manner practicable, the date of this Agreement (and in any event no later than the Outside Date)Transactions, including (i) using its reasonable best efforts to takeaccomplish the following: (i) obtain all required consents, approvals or waivers from, or cause to be takenparticipation in other discussions or negotiations with, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfiedthird parties, including as required under any Parent Material Contract or Company Material Contract (as applicable); (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions or nonactions, waivers, licensesconsents, ordersapprovals, orders and authorizations from Governmental Entities, make all necessary registrations, authorizationsdeclarations and filings and make all reasonable best efforts to obtain all approvals or waivers from, approvals or to avoid any Action by, any Governmental Entity, including filings under the HSR Act with the United States Federal Trade Commission and permits contemplated by this Agreement, the Antitrust Division of the United States Department of Justice; and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings execute and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as deliver any additional instruments necessary to attend consummate the Transactions and fully to carry out the purposes of this Agreement; provided, however, that neither the Company nor any regulatory meetingsof its Subsidiaries shall commit to the payment of any fee, hearings penalty or other proceedings).
(b) To consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent. Each of Parent and the Company shall furnish to the other Party such information as such other Party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, each of Parent and the Company shall have the right to review in advance, and to the extent permissible under practicable each shall consult with the other in connection with, all of the information relating to Parent or the Company, respectively, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Transactions. In exercising the foregoing rights, each of Parent and the Company shall act reasonably and as promptly as practicable. Subject to applicable Law or any rule, regulation or restriction and the instructions of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) Company shall keep the other parties one another reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby and Transactions, including promptly inform furnishing the other parties with copies of any communication (including the initiation of any proceeding) notices or other written communications received by such party Parent and the Company, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any and/or third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby Transactions, and, to the extent practicable under the circumstances, shall provide the other Party and its counsel with the opportunity to participate in any applicable Law or if any suit is instituted by meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the Transactions.
(b) Notwithstanding anything herein to the contrary, Parent shall take any private party challenging and all action necessary, including (i) agreeing or proffering to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the transactions contemplated hereby as violative assets or businesses of Parent or the Company or any applicable Lawof their respective Affiliates or, each of assuming the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on Mergers, the terms set forth in this Agreement as soon as reasonably practicable after the date Surviving Company or any of this Agreement its Affiliates, (and ii) agreeing or proffering to limit in any event no later than manner whatsoever or not to exercise any rights of ownership of any securities (including the Outside Date).shares of
Appears in 2 contracts
Samples: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, and subject at all times to each Person’s and its directors’ duty to act in a manner consistent with their fiduciary duties, each of the CompanyDouYu, Parent Huya and Merger Sub shall Tencent, as applicable, will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Law promptly to consummate the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, including preparing, executing and (iii) taking the reasonable steps as may be filing promptly all documentation to effect all necessary notices, reports, applications and other filings and to obtain promptly all consents, registrations, approvals, permits and authorizations necessary or advisable to make all necessary filings be obtained from any third party and/or Governmental Entity in order to consummate the Merger and obtain all the other transactions contemplated by this Agreement, except to the extent such actions, things, notices, reports, applications, filings, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, permits or authorizations are related to any PRC Regulatory Filings with respect to which Tencent has the right to waive the condition prescribed in Section 8.2(g); provided, that except to the extent related to such PRC Regulatory Filings, DouYu, Huya and Tencent will cooperate with each other in determining whether any action by or in respect of, or filing with, any Governmental Entity is required in connection with the consummation of the Merger and the other transactions contemplated by this Agreement and seeking any such actions, consents, approvals or waivers or making any such filings. Each of Huya, DouYu and permits (including providing Tencent will furnish, and cause their Affiliates to furnish, to each other all necessary information and documentary material and providing personnel as necessary to attend required for any regulatory meetings, hearings application or other proceedings)filing under the rules and regulations of any applicable Law in connection with the Merger and the other transactions contemplated hereby.
(b) To Without limiting the extent permissible under applicable Law or any rule, regulation or restriction generality of any Governmental Entityanything contained in this Section 7.4, each of DouYu, Huya and Tencent, as applicable, will, and will cause their Affiliates to: (i) give each other prompt notice of the Companymaking or commencement of any request, Parent inquiry, investigation, action or other Proceeding by or before any Governmental Entity with respect to the Merger or any other transaction contemplated hereby; (ii) keep each other informed as to the status of any such request, inquiry, investigation, action or other Proceeding; and (iii) promptly inform each other of any communication to or from any Governmental Entity regarding the Merger Sub shalland the other transactions contemplated hereby. Each of DouYu, Huya and Tencent will consult and cooperate, and will cause its Affiliates to consult and cooperate, with each other and will consider in good faith the views of each other in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for Merger or any of the other transactions contemplated hereby. In addition, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated except as may be prohibited by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and or by any material communication received from any private party, in each caseLaw, in connection with any pending such request, inquiry, investigation, action or threatened litigation regarding any other Proceeding, each of DouYu, Huya and Tencent will permit, and will cause its Affiliates to permit, authorized Representatives of the transactions contemplated herebyother parties to be present at each meeting or conference relating to such request, (iii) permit the other partiesinquiry, or the other parties’ legal counselinvestigation, to review any filing, submission action or other communication given by it Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity or, in connection with any pending or threatened litigation by any private partysuch request, with any other Person and to receive final versions of the same (it being understood that each party shallinquiry, without limitationinvestigation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity action or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18Proceeding.
(c) If To the extent it is determined by Tencent in good faith that any objections PRC Regulatory Filings are asserted required to be made with respect to the transactions contemplated hereby under to any applicable Law or if competent Governmental Entity, unless Tencent waive the condition prescribed in Section 8.2(g) in accordance with Section 8.2(g) with respect to any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Lawsuch PRC Regulatory Filings, each of the CompanyHuya, Parent DouYu and Merger Sub shallTencent will, subject to Section 6.18 and will cause its Affiliates to, (i) make, and cooperate and coordinate with each other in the event of making of, such PRC Regulatory Filings as promptly as practicable with or to each such competent Governmental Entity, (ii) supply each other or each other’s outside counsel with any Transaction Litigationinformation that may be required or requested by any such Governmental Entity in connection with such PRC Regulatory Filings, (iii) supply any additional information that may be required or requested by such Governmental Entity in which any such PRC Regulatory Filings are made under any such applicable PRC Laws as promptly as practicable, and (iv) use its reasonable best efforts to resolve cause the expiration or termination of the applicable waiting periods under any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement PRC Laws as soon as reasonably practicable practicable.
(d) Notwithstanding the foregoing, nothing contained in this Agreement will require, or be construed to require, Huya, Tencent or any of their respective Affiliates to, and neither DouYu nor any of its Subsidiaries shall, proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the date Effective Time, any of the assets, licenses, operations, rights, products or businesses held by any of them prior to the Effective Time, or any interest therein, or to agree to any material change (including through a licensing arrangement) or restriction on, or other impairment of Huya’s or any of its Affiliates’ (including, after the Effective Time, DouYu or its Subsidiaries) ability to own, manage or operate, any such assets, licenses, operations, rights, products or businesses, or any interest therein, or Huya’s ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the shares of the Surviving Corporation (any of the actions referred to in this Agreement (and in any event no later than the Outside DateSection 7.4(d), a “Non-Required Remedy”).
Appears in 2 contracts
Samples: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, each Party shall, and shall cause their respective Affiliates to, use their reasonable best efforts to, as promptly as practicable, (i) consummate the Offer and the Merger and the other transactions contemplated by this Agreement, (ii) obtain from any Governmental Authority any consent, approval, authorization, waiver or order required to be obtained or made by any Party or any of their respective Affiliates and avoid any Action by any Governmental Authority, in each case in connection with the Offer and the Merger and to fulfill the conditions to the transactions contemplated by this Agreement, (iii) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under applicable Law, including the HSR Act and any other applicable Antitrust Laws, in each case in connection with the Offer and the Merger and to fulfill the conditions to the transactions contemplated by this Agreement, and (iv) to the extent requested by Parent, obtain all necessary or appropriate consents, waivers and approvals and make all necessary or appropriate notifications under any Contracts of the CompanyCompany and its Subsidiaries, in each case in connection with the Offer and the Merger (provided, that the actions contemplated by this subclause (iv) shall not be a condition to the obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement, including the Offer and the Merger). Upon the terms and subject to the conditions of this Agreement, Parent and the Company shall, and shall cause their respective Affiliates to, cooperate with each other in connection with obtaining all such consents, approvals, authorizations, waivers or orders and the making of all such filings, including, unless prohibited by applicable Law or a Governmental Authority, providing copies of all such non-proprietary documents to outside counsel for the non-filing Party prior to filing and, if reasonably requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. Parent and the Company shall, and shall cause their respective Affiliates to, promptly furnish to each other all information reasonably required for any application or other filing to be made by the other with any Governmental Authority in connection with the transactions contemplated by this Agreement.
(b) Parent and the Company agree to make, and to cause their respective Affiliates to make, any necessary filings under the HSR Act and any other Antitrust Laws no later than ten (10) Business Days after execution of this Agreement. Parent and the Company shall, and shall cause their respective Affiliates to, comply at the earliest practicable date with any request under the HSR Act or any other Antitrust Laws to provide information, documents or other materials requested by any Governmental Authority.
(c) Parent and the Company shall each request early termination of the waiting period provided for in the HSR Act. Parent and the Company shall, and shall cause their respective Affiliates to, coordinate and cooperate in connection with their respective efforts to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws as promptly as practicable and in any event before the End Date. In connection with any investigation or other inquiry, Parent and the Company shall, and shall cause their respective Affiliates to, unless prohibited by applicable Law or a Governmental Authority, (i) keep the other Party promptly informed of any communication received by such Party or any of its Affiliates from any Governmental Authority regarding any of the transactions contemplated hereby, and (ii) provide outside counsel for the other Party with a reasonable opportunity to (A) review in advance any proposed communication by such Party or its Affiliates with any Governmental Authority, (B) consult with the other Party prior to any meeting or conference with any Governmental Authority, and (C) attend and participate in such meetings or conferences. Without the prior written consent of the other Party, Parent and the Company will not, and will not permit their respective Affiliates to consent or agree to extend the waiting period under the HSR Act or enter into any agreement with any Governmental Authority with respect to the transactions contemplated by this Agreement.
(d) Each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.04 as “outside counsel only.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from Parent or the Company, as the case may be, or its legal counsel.
(e) In furtherance and not in limitation of the covenants of the Parties contained in this Section 5.04, Parent and the Company shall, and shall cause their respective Affiliates to, use its reasonable best efforts to take, or cause to be taken, the all other actions and to do, or cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby by this Agreement, to resolve such objections, if any, as soon as reasonably practicable after any Governmental Authority may assert under the date of this Agreement (and in HSR Act or any event no later than other Antitrust Laws with respect to the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, and (iii) taking to avoid or eliminate each and every impediment and avoid the reasonable steps as institution of any Action under any such Law that may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of asserted by any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted Authority with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Lawthis Agreement, in each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law case so as to permit enable the Offer and the Merger to occur as promptly as possible and in any event before the End Date, to ensure that no Governmental Authority enters any Order or establishes any Law preliminarily or permanently restraining, enjoining or prohibiting the consummation of the transactions contemplated hereby by this Agreement, or to ensure that no Governmental Authority with the authority to authorize or approve such consummation fails to do so as promptly as practicable and in any event before the End Date; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, no such remedy shall be (A) required unless contingent upon the occurrence of the Merger, (B) proposed, agreed to or effected by the Company or its Subsidiaries without the prior written consent of Parent or (C) required to be agreed to by Parent or its Affiliates if such remedy would have a material adverse effect on the terms set forth in this Agreement business, results of operations or financial condition of (x) the Company and its Subsidiaries (taken as soon a whole) or (y) Parent and its Subsidiaries (taken as reasonably practicable a whole, after giving effect to the Merger).
(f) Between the date of this Agreement and the earlier of the termination or expiration of the applicable waiting period under the HSR Act or the termination of this Agreement in accordance with its terms, neither Parent nor the Company shall, and shall not permit any of their respective Affiliates to, enter into any binding agreement or any letter of intent (whether or not binding) for any acquisition (via stock purchase, merger, consolidation, purchase of assets or otherwise) of, or commence any tender offer for, any ownership interest or assets of any Person if such ownership interest or assets would reasonably be expected to materially delay or materially and adversely affect Parent’s ability to obtain termination or expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act as promptly as practicable and in any event no later than before the Outside End Date).
Appears in 2 contracts
Samples: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Telecommunication Systems Inc /Fa/)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent Company and Merger Sub Investor shall cooperate with each other and use (and the Company shall cause its Subsidiaries to use) its reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (a) take, or cause to be taken, the actions all actions, and to do, or cause to be done, the and assist and cooperate with each other in doing, all things necessary, proper or advisable under this Agreement to cause the conditions set forth in Articles VI and applicable Laws VII, as applicable, to be satisfied as promptly as practicable and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by the Transaction Documents, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (b) obtain all Required Approvals and all other approvals, consents, waivers and other confirmations from any third party necessary, proper or advisable to consummate the transactions contemplated hereby as soon as reasonably practicable after by the date of this Agreement Transaction Documents and (c) execute and in deliver any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions additional instruments necessary to cause consummate the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, the Transaction Documents; provided that all costs and (iii) taking expenses relating to the reasonable steps as may foregoing shall be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each sole responsibility of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) Agreement shall not apply obligate Investor or any of its Affiliates to (i) make any Transaction Litigationsale, which is divestiture, license or other disposition of its assets, properties or businesses, or the subject of Section 6.18.
Securities to be acquired by Investor pursuant hereto, (cii) If any objections are asserted with respect agree to the transactions contemplated hereby under imposition of any applicable Law limitation on the ability of any of them to conduct their respective businesses or if to own or exercise control of such businesses, assets and properties or such Securities, or (iii) take any suit is instituted by any Governmental Entity other action that could reasonably be expected to negatively impact Investor or any private party challenging any of its Affiliates, whether in respect of the transactions transaction contemplated hereby as violative of any applicable Law, each of by the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections Documents or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)otherwise.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Oncobiologics, Inc.)
Reasonable Best Efforts. (a) Subject to On the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent on the one hand, and Merger Sub Purchaser, on the other hand, shall (and shall cause their respective Affiliates to) cooperate with each other and use its their respective reasonable best efforts to take, take or cause to be takentaken all actions, the actions and to do, do or cause to be donedone all things, the things reasonably necessary, proper or advisable on its part under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby as soon as reasonably practicable, including to (i) promptly prepare and file (as applicable) all permits, consents, approvals, confirmations (whether in writing or orally) and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated hereby or the conversion of the Series C Preferred Stock or exercise of the Warrant, including those listed on Section 1.2(f)(1)(C) of the Company Disclosure Schedules in respect of the purchase of Additional Shares, as promptly as reasonably practicable after following the date of this Agreement (hereof and in any event no later than fifteen (15) business days following the Outside Date)date hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, and (ii) preparing and filing respond to any request for information from any Governmental Entity relating to the foregoing, so as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and enable the parties hereto to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits consummate the transactions contemplated by this Agreement; provided, and however, that nothing herein shall require the Company or Purchaser to pay or commit to pay any amount or incur any material obligation in favor of or grant any material accommodation (iiifinancial or otherwise) taking the reasonable steps as may to any person in connection with such efforts. In no event shall Purchaser be necessary or advisable required to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary agree to attend any regulatory meetings, hearings provide capital or other proceedings)financial support to the Company or any of its Subsidiaries thereof other than the Purchase Price to be paid for the Purchased Stock to be purchased by it pursuant to the terms of, or subject to the conditions set forth in, this Agreement.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entitypermitted by Law, each of Purchaser and the CompanyCompany will (i) have the right to review in advance all information to the extent relating to such party and any of its respective Affiliates and its and their respective directors, Parent officers, partners and Merger Sub shallstockholders which appears in any proposed filings to be made with, or written materials to be submitted to, any Governmental Entity (and each will consult with the other party relating to the exchange of such filings and shall consider in good faith any comments made by the other party in relation thereto, including with respect to all information which appears in any filings relating to the other party and any of its respective Affiliates and its and their respective directors and officers) and (ii) keep each other reasonably informed of, and consult with the other in advance of, any substantive meeting or conference with any Governmental Entity that is reasonably likely to relate to the transactions contemplated by this Agreement or affect Purchaser or its investment in the Company in connection with the efforts referenced above transactions. In exercising the foregoing right, each party agrees to obtain all requisite approvalsact reasonably and as promptly as reasonably practicable. To the extent permitted by applicable Law, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts each party agrees to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties party reasonably apprised of the status of matters relating referred to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.183.2(b).
(c) If To the extent permitted by applicable Law, the parties shall promptly advise each other upon receiving any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by material communication from any Governmental Entity whose consent, waiver, approval or any private party challenging any of authorization is required for the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on by this Agreement, including any communication that causes such party to believe that there is a reasonable likelihood that any required approval, consent or authorization from a Governmental Entity related to the terms set forth in transactions contemplated by this Agreement as soon as reasonably practicable after will not be obtained or that the date receipt of this Agreement (and in any event no later than the Outside Date)such approval, consent or authorization will be materially delayed or conditioned.
Appears in 2 contracts
Samples: Investment Agreement (AlTi Global, Inc.), Investment Agreement (AlTi Global, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall will use (and cause its Affiliates to use) its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken promptly, all actions, and to do promptly, or cause to be done promptly, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties and all consents, approvals and waivers from third parties reasonably requested by Parent to be obtained in respect of the Company Material Contracts in connection with the Offer, the Merger, this Agreement or the transactions contemplated by this Agreement (it being understood that the failure to receive any such consents, approvals or waivers will not be a condition to Parent’s and Merger Sub’s obligations hereunder), and (iii) the execution and delivery of any additional instruments necessary to consummate the Offer or the Merger and the other transactions contemplated by this Agreement; provided, however, that in no event will the Company or any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or to incur any material cost or expense in the performance hereof.
(b) Subject to the terms and conditions set forth in this Agreement, and without limiting the foregoing, the Company and Parent will (i) promptly, (A) but in no event later than ten Business Days after the date of this Agreement, make their respective filings and thereafter make any other required submissions under the HSR Act and any other applicable Antitrust Law, (ii) except in connection with a disclosure regarding a Change of Recommendation or an Acquisition Proposal received by the Company, use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or cause to be taken, the all other actions and to do, or cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby as soon as reasonably practicable after hereby, (iv) promptly inform the date other party, and if in writing, furnish the other party with copies of this Agreement (and or, in any event no later than the Outside Datecase of oral communications, advise the other party orally of), including (i) using reasonable best efforts receipt of any communication from or to take, the Antitrust Division of the United States Department of Justice or cause to be taken, Federal Trade Commission or any other Governmental Entity regarding any of the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement, and (iiiv) taking subject to applicable legal limitations and the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction instructions of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with keep each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to the completion of the transactions contemplated hereby and thereby, including promptly inform furnishing the other parties with copies of any communication (including the initiation of any proceeding) notices or other communications received by such party the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and any material communication received from any private party, in each case, with respect to the Offer or the Merger. Except in connection with any pending a disclosure regarding a Change of Recommendation or threatened litigation regarding any of an Acquisition Proposal received by the transactions contemplated herebyCompany, (iii) the Company and Parent will permit counsel for the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right reasonable opportunity to review in advance, subject to applicable Laws relating to and consider in good faith the exchange of information, all views of the information relating to such party, and any of its respective Subsidiaries, which appears other party in any filing made connection with, or materials submitted to, any third party or proposed written communication to any Governmental Entity. Each of the Company and Parent agrees not to (A) participate in any meeting or discussion, either in person or by telephone, with respect to this Agreement or any Governmental Entity in connection with the Merger), (iv) consult proposed transactions unless it consults with the other parties party in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted not prohibited by such Governmental Entity or other PersonEntity, give gives the other parties party the opportunity to attend and participate in participate, (B) extend any waiting period under the HSR Act without the prior written consent of the other party (such meetingsconsent not to be unreasonably withheld, conferencesconditioned or delayed), conference callsor (C) enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, discussions and communicationsconditioned or delayed). Notwithstanding the foregoingThe foregoing notwithstanding, the obligations set forth parties agree that it is Parent’s primary right to devise and implement the strategy for all filings, notifications, submissions and communications in connection with any filing, notice, petition, statement, registration, submission of information, application or similar filing subject to this Section 6.5(b) shall not apply 6.3 after consulting with, and taking into account in good faith any comments of, the Company relating to any Transaction Litigation, which is the subject of Section 6.18such strategy.
(c) If any objections are asserted with respect to In furtherance and not in limitation of the transactions contemplated hereby under any applicable Law or covenants of the parties contained in this Section 6.3, if any suit administrative or judicial action or proceeding, including any proceeding by a private party, is instituted by any Governmental Entity (or any private party threatened to be instituted) challenging any of the transactions transaction contemplated hereby by this Agreement as violative of any applicable Antitrust Law, each of the Company, Company and Parent will cooperate in all respects with each other and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, will use its their respective reasonable best efforts to resolve contest and resist any such objections action or challenges as such Governmental Entity proceeding and to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law so as to permit overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. Without limiting the generality or effect of the foregoing, in order to resolve such action or proceeding or threat thereof which, if not resolved, would reasonably be expected to prevent, materially impede or materially delay the consummation of the Offer, the Merger or the other transactions contemplated hereby on beyond the terms set forth Outside Date, Parent will agree to sell, hold separate or otherwise dispose of or conduct its business in a manner which would resolve such actions or proceedings (or agree to do any of the foregoing) to the extent necessary to resolve such action or proceeding or threat thereof so that the Offer Closing, the Closing and the other transactions contemplated by this Agreement may be consummated by the Outside Date; provided, however, that anything in this Agreement to the contrary notwithstanding, Parent will not be required to, and the Company may not, take or agree to take any such action that, individually or in the aggregate, would be reasonably likely to result in a material adverse effect on (i) the Company and its Subsidiaries, taken as soon as reasonably practicable a whole, considered on a standalone basis or (ii) on Parent’s maintenance, repair and operations business, considered on a combined basis with the business of the Company and its Subsidiaries after the date Closing. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.3 will limit a party’s right to terminate this Agreement (and in any event no later than the Outside Date)pursuant to Section 8.2 so long as such party has, prior to such termination, complied with its obligations under this Section 6.3.
Appears in 2 contracts
Samples: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this AgreementAgreement and subject to applicable Legal Requirements, each of the Company, Parent and Merger Sub shall Parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the transactions contemplated hereby as soon as reasonably practicable after most expeditious manner practicable, the date of this Agreement (Merger and in any event no later than the Outside Date)other Transactions, including (i) using their reasonable best efforts to take, or cause to be taken, the actions necessary to (i) cause the conditions to Closing precedent set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions, waivers, licensesconsents, ordersapprovals, orders and authorizations from Governmental Entities and third parties, including any consents, approvals or waivers from third parties referred to on Section 6.5(a) of the Company Disclosure Letter, (iii) make all necessary registrations, authorizationsdeclarations and filings (including registrations, approvals declarations and permits contemplated filings with Governmental Entities, if any), (iv) defend any Legal Proceeding challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by this Agreementany court or other Governmental Entity vacated or reversed, and (iiiv) taking the reasonable steps as may be necessary execute or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as deliver any additional instruments reasonably necessary to attend any regulatory meetingsconsummate, hearings or other proceedings)and fully carry out the purposes of, the Transactions.
(b) To Notwithstanding anything herein to the extent permissible under applicable Law contrary, nothing in this Section 6.5 shall be deemed to require any Party or any rule, regulation of their respective Affiliates to agree to any divestiture by itself or restriction any of its Affiliates of shares of capital stock or of any Governmental Entitybusiness, each of assets or property, the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties imposition of any communication (including limitation on the initiation ability of any proceeding) received by such party from any Governmental Entity of them to conduct their business or to own or exercise control of their respective assets, properties and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other partiescapital stock, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance incurrence of any meeting, conference, conference call, discussion liability or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18expense.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent From and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement until the earlier of the Closing and the valid termination of this Agreement pursuant to its terms, Parent, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any stockholder demands or other stockholder Legal Proceedings (including derivative claims) relating to this Agreement, any Transaction Document or any matters relating thereto other than any appraisal claims contemplated by Section 2.9 (collectively, the “Transaction Litigation”) commenced against, in the case of Parent or Merger Sub, any of Parent or Merger Sub or any of their respective Representatives (in their capacity as a representative of Parent or Merger Sub) or, in the case of the Company, any Group Company or any of their respective Representatives (in their capacity as a representative of a Group Company). Parent and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation and (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation; provided, however, that in no event shall Parent or Merger Sub, on one hand, or the Company, any other Group Company, on the other hand, or, in any event no later than case, any of their respective Representatives settle or compromise any Transaction Litigation without the Outside Date)prior written consent of the Company or Parent, as the case may be.
Appears in 2 contracts
Samples: Merger Agreement (Hillman Companies Inc), Merger Agreement (Landcadia Holdings III, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each Each of the CompanyCompany and Parent shall cooperate with and assist the other party, Parent and Merger Sub shall use its reasonable best efforts efforts, to promptly (i) take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws to ensure that the conditions set forth in Annex A and regulations Article 8 are satisfied and to consummate the transactions contemplated hereby as soon as practicable, 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 and (ii) obtain and maintain all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any other Person, including any Governmental Entity, that are necessary, proper or advisable to consummate the Offer, the Merger and the other transactions contemplated hereby in the most expeditious manner practicable but in any event before the Outside Date (including obtaining the Necessary Consents). None of Parent, Merger Sub or any of their respective Affiliates shall take any action, refrain from taking any action or permit any action to be taken that is inconsistent with this Agreement or that would reasonably practicable be expected to impede, delay or prevent the consummation of the transactions contemplated hereby.
(b) In furtherance and not in limitation of the foregoing, each party hereto shall (i) make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act and appropriate filings under all other applicable Regulatory Laws with respect to the transactions contemplated hereby as promptly as practicable, but in no event later than ten Business Days, after the date of this Agreement Agreement, and Parent and the Company shall each bear their own costs and expenses incurred in connection with such filings; provided that Parent shall pay any filing fees in connection therewith, and (ii) use its reasonable best efforts (A) to respond at the earliest practicable date to any requests for additional information made by the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, (B) to take all actions necessary to cause the waiting periods under the HSR Act and any other applicable Regulatory Laws to terminate or expire at the earliest possible date, (C) to take all actions necessary to obtain any necessary approval under applicable Regulatory Laws, (D) to resist in good faith, at each of their respective cost and expense, any assertion that the transactions contemplated hereby constitute a violation of the Regulatory Laws, and (E) to eliminate every impediment under any Regulatory Law that may be asserted by any Governmental Entity so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Outside Date), including (i) using all to the end of expediting consummation of the transactions contemplated hereby. Such reasonable best efforts of Parent shall include, to takethe extent such actions would not, individually or in the aggregate, have a material adverse effect on the business of Parent and Parent’s Affiliates (including, after the Effective Time, the Surviving Corporation) taken as a whole, the obligation of Parent to agree to hold separate, divest or enter into a consent agreement or assume any obligation with regard to (1) any of the businesses, product lines or assets of Parent or Parent’s Affiliates, (2) after the Effective Time, any businesses, product lines or assets of the Surviving Corporation or any of its Subsidiaries acquired pursuant to this Agreement and/or (3) after the Effective Time, the Surviving Corporation or any of its Subsidiaries (including entering into customary ancillary agreements relating to any such divestiture of businesses, product lines or assets) as may be required by any applicable Governmental Entity (including the DOJ, the FTC or any court having jurisdiction), in each case, to avoid the filing of any suit or proceeding by any Governmental Entity seeking to enjoin the consummation of the transactions contemplated hereby or to avoid the entry of, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applicationsthe dissolution of, noticesany injunction, petitionstemporary restraining order or other Order in any suit or proceeding that would otherwise have the effect of restraining, filings and other documents and preventing or delaying the consummation of the transactions contemplated hereby. To the extent such reasonable best efforts of Parent and/or the Company would require Parent and/or the Company to obtain hold separate, divest or enter into a consent agreement or assume any obligation with regard to the Company or any of its Subsidiaries or any of their respective businesses, product lines or assets, Parent’s and/or the Company’s effectuation of such actions shall be contingent upon the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, no action taken by Parent pursuant to this Section 7.2 shall entitle Parent to any reduction of the Offer Price or the Merger Consideration. Except as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits otherwise expressly contemplated by this Agreement, each of Parent and the Company shall not, and shall cause its Subsidiaries not to, take any action or knowingly omit to take any action within its reasonable control where such action or omission would, or would reasonably be expected to, result in (iiiI) taking any of the reasonable steps as may be necessary conditions to the Offer set forth in Annex A or advisable any of the conditions to make all necessary filings and obtain all the Merger set forth in Article 8 not being satisfied prior to the Outside Date or (II) a material delay in the satisfaction of such consentsconditions. Neither Parent nor the Company will, clearancesdirectly or indirectly, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend extend any regulatory meetings, hearings waiting period under the HSR Act or other proceedings)Regulatory Laws or enter into any agreement with a Governmental Entity to delay or not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed.
(bc) To In connection with this Section 7.2, the parties hereto shall, to the extent permissible under permitted by applicable Law or any ruleLaws, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing filing, submission, investigation or submission inquiry, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the DOJ, the FTC or any other Governmental Entity and of any material communication received or given in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any a private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating and to the exchange of informationextent practicable each shall consult the other on, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or written materials to be submitted to, any third party the DOJ, the FTC or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by a private party, any other Person, in connection with any of the transactions contemplated hereby, and (iv) consult with each other in advance of any meeting, discussion, telephone call or conference with the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person and (v) and, to the extent permitted not expressly prohibited by such the DOJ, the FTC or any other Governmental Entity or other Person, give the other parties party hereto the opportunity to attend and participate in such meetings, meetings and conferences, conference callsin each case, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging regarding any of the transactions contemplated hereby hereby. The parties hereto may, as violative of each deems advisable and necessary, reasonably designate any applicable Law, each competitively sensitive material provided to the other under this Section 7.2 as “Outside Counsel Only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the Companyrecipient and will not be disclosed by such outside counsel to directors, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections officers or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation employees of the transactions contemplated hereby on recipient unless express written permission is obtained in advance from the terms set forth source of the materials (the Company or Parent, as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Agreement as soon as reasonably practicable after Section 7.2, materials provided to the date other party hereto or its counsel may be redacted to remove references concerning the valuation of this Agreement (the Company and in any event no later than the Outside Date)its Subsidiaries or other competitively sensitive information.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its respective reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Law to consummate the transactions contemplated hereby Transactions, including the Merger, as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as reasonably practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals and permits contemplated by this Agreementpermits, and (iii) taking the reasonable steps as may be authorizations necessary or advisable to be obtained from any Governmental Authority in order to consummate the Transactions, including the Merger, and (ii) taking all actions as may be necessary, subject to the limitations in this Section 6.6, to obtain (and cooperating with each other in obtaining) all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders, and approvals. In furtherance and not in limitation of the foregoing, each Party agrees to make all necessary filings an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable, and in any event within ten Business Days after the execution of
(b) Each of Tyler and NIC shall, in connection with and without limiting the efforts referenced in Section 6.6(a) to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances permits, and authorizations for the transactions contemplated herebyTransactions under the HSR Act, use its reasonable best efforts to (i) to the extent not prohibited by applicable Law, cooperate in all respects and consult with each other party in connection with any such filing or submission and in connection with any investigation or other inquiryinquiry with respect thereto, including any proceeding initiated by any a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Authority, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Party of any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity Authority, by promptly providing copies to the other Party of any such written communications (or, in the case of oral communications, advise the other Party of such communications), and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated herebyTransactions, and (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right Party to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, substantive telephone call or conference call, discussion or communication with, the DOJ, the FTC or any such other Governmental Entity Authority or, in connection with any proceeding by any a private party, with any other Person Person, and (v) to the extent permitted by such the DOJ, the FTC, or other applicable Governmental Entity Authority or other Person, give the other parties Party the opportunity to attend and participate in such any in-person meetings, conferences, conference substantive telephone calls, discussions and communications. Notwithstanding or conferences with the foregoingDOJ, the obligations set forth in this Section 6.5(bFTC, or other Governmental Authority or other Person; provided, however, that materials required to be provided pursuant to the foregoing clauses (i)-(iii) shall not apply may be redacted (A) to remove references concerning the valuation of Tyler, NIC, or any Transaction Litigationof their respective Subsidiaries, which is the subject of Section 6.18.(B) as necessary to comply with contractual arrangements, and (C) as necessary to address reasonable privilege
(c) If any objections are asserted In connection with respect to and without limiting the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Lawforegoing, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event that Tyler reasonably requests NIC to do so, and after good-faith consultation with NIC with respect thereto, NIC shall give any notices to third parties required under Contracts (other than Contracts that may be canceled or terminated for convenience), and NIC shall use, and cause each of any Transaction LitigationNIC Subsidiaries to use, use its commercially reasonable best efforts to resolve seek to obtain any Third Party consents to any Contracts (other than Contracts that may be canceled or terminated for convenience) that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Tyler, NIC or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment, or consideration, make any other concession or provide any additional security (including a guaranty), to obtain such objections Third Party consents (except, in the case of NIC, if requested by Tyler and either (i) reimbursed or challenges as such Governmental Entity indemnified for by Tyler or private party may have (ii) subject to such transactions under such applicable Law so as to permit consummation the occurrence of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside DateClosing).. 6.7
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, the Company and each of the Company, Parent and Merger Sub Entities shall use its their respective reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under Applicable Law to consummate and effect the Mergers, the Parent Restructuring and the other transactions contemplated by this Agreement as promptly as reasonably practicable, including using reasonable best efforts to (i) take such actions as are necessary to cause the conditions set forth in Article 9 to be satisfied as promptly as reasonably practicable (provided that nothing in this Agreement shall be deemed to obligate any party to waive any such conditions), (ii) prepare, make and applicable Laws file, as promptly as practicable, all notices, statements, filings, submissions of information, applications and regulations other documents with any Governmental Authorities as are necessary, proper or advisable to consummate the Mergers and the other transactions contemplated by this Agreement, (iii) obtain, as promptly as reasonably practicable, and maintain all consents, approvals, authorizations, clearances, actions, non-actions, waivers, licenses, registrations, permits, variances, exemptions, orders and other confirmations from any Governmental Authorities or other third parties as are necessary, proper or advisable to consummate the Mergers and the other transactions contemplated by this Agreement, (iv) resolve, as promptly as reasonably practicable, any objections as may be asserted by any Governmental Authority in connection with any Competition Laws with respect to the transactions contemplated hereby and to avoid the entry of, or effect the dissolution of, any decree, Order, judgment, injunction, temporary restraining order or other Order in any suit or proceeding, that would otherwise have the effect of preventing, enjoining or prohibiting the consummation of the transactions contemplated hereby (including by defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Mergers) and (v) cooperate to the extent reasonable with the other parties hereto in their respective efforts to comply with their respective obligations under this Agreement. In furtherance of the requirements of this Section 8.01, the Parent Entities and their Affiliates shall undertake any effort or take any action (including by (A) entering into any settlement, undertaking, consent decree, stipulation or agreement (including any mitigation agreement) with any Governmental Authority in connection with the Merger or the other transactions contemplated hereby, (B) litigating, appealing, challenging or taking any other action with respect to any action or proceeding by any Governmental Authority, (C) divesting, holding separate or otherwise disposing of (including by establishing a trust or otherwise) any businesses, operations, assets, product lines or properties of any of the Parent Entities, the Company or any of their respective Subsidiaries, or (D) taking any other action (or otherwise agree to do any of the foregoing) or agreeing to any prohibition, limitation, monitoring or reporting on its ownership, operation or control of or with respect to, any of its or the Surviving Corporation’s Subsidiaries or any of their respective Affiliates’ business, operations, assets, product lines, or properties, (E) not competing in any geographic area or line of business and/or (F) restricting the same manner in which, or whether, the Company or any of its Subsidiaries, any of the Parent Entities or any of their respective Affiliates may carry on business in any part of the world (collectively, the actions described in clauses (A) through (F), the “Remedial Actions”)) necessary or required in order to obtain any Required Governmental Approvals (including taking such Remedial Actions or agreeing to take such Remedial Actions as soon promptly as reasonably practicable practicable); provided that the parties hereto understand and agree that nothing in this Section 8.01 or anything else in this Agreement shall require any party hereto or any of its Affiliates (and neither the Company nor any of its Subsidiaries shall offer or agree to, without Parent’s prior written consent, any of the following), and the reasonable best efforts of any party hereto shall not be deemed to include any obligation (i) to take the actions set forth in Section 8.01(a)(i) of the Company Disclosure Letter, (ii) after consulting and cooperating with and considering in good faith the views of the Company with respect thereto, to take or agree to take any Remedial Actions (other than Remedial Actions described in clause (B) of the definition thereof) prior to the date that is ten months after the date of this Agreement (and in any event no later than provided that each of the Outside Date), including (i) Parent Entities is otherwise using reasonable best efforts to take, or cause to be takenconsummate and effect the Mergers, the actions necessary to cause Parent Restructuring and the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits transactions contemplated by this Agreement as required by this Section 8.01, including taking the Remedial Actions described in clause (B); provided, further, that, on and after the date that is ten months after the date of this Agreement, the Parent Entities and their respective Affiliates shall take or agree to take all actions (subject to clauses (i) and (iii) taking of this proviso), including Remedial Actions, in the reasonable steps as may be most expeditious manner practicable necessary or advisable required in order to make all necessary filings obtain any Required Governmental Approvals in accordance with this Section 8.01(a)) or (iii) to agree to any Remedial Actions with respect to any businesses, assets, operations, properties or product lines of Parent, the Company and obtain all their respective Subsidiaries (collectively, the “Combined Company”) in (x) Brazil, if such consentsRemedial Actions would result, clearancesin the aggregate, waiversin a loss of Gross Sales in Brazil in an amount exceeding the amount set forth in Section 8.01(a)(ii) of the Company Disclosure Letter or (y) any jurisdictions other than Brazil, licensesif such Remedial Actions would result, ordersin the aggregate, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or in a loss of Gross Sales in countries other proceedings)than Brazil in an amount exceeding the amount set forth in Section 8.01(a)(iii) of the Company Disclosure Letter.
(b) To the extent permissible under applicable Law or any rulepermitted by Applicable Law, regulation or restriction of any Governmental Entity, each of the Company, Parent parties shall jointly cooperate and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep regarding the other parties apprised of the status of matters relating to completion defense of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from before any Governmental Entity Authority; provided that Parent shall, after considering in good faith the Company’s views and comments, be entitled, subject to compliance with its obligations under this Section 8.01, to control and direct such defense and take the lead in the scheduling of, and strategic planning for, any material communication received from any private partymeetings with, and the conducting of negotiations with, Governmental Authorities regarding the transactions contemplated hereby.
(c) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall make an appropriate filing of all initial filings (being a pre-notification draft, in each case, jurisdictions where such is the custom) as may be required in connection with the Required Competition Approvals as promptly as practicable and in any pending event within 30 Business Days after the date hereof (provided that the filings in connection with the Required Competition Approvals set forth in Section 8.01(c)(i) of the Company Disclosure Letter shall be made as promptly as practicable and in any event within 40 Business Days after the date hereof), and supply as promptly as practicable any additional information and documentary material that may be requested by any Governmental Authority pursuant to any Competition Laws; provided that none of the Parent Entities, the Company or threatened litigation regarding any of their Subsidiaries shall be permitted to make any filings in connection with the Required Competition Approvals set forth in Section 8.01(c)(ii) of the Company Disclosure Letter prior to the Closing Date without the other party’s consent. Subject to Parent’s compliance with its obligations under this Section 8.01, Parent shall, on behalf of the parties hereto, control and lead all communications and strategy relating to the Competition Laws, after consulting and cooperating with and considering in good faith the views of the Company with respect thereto. The Company shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated herebyby this Agreement at the behest of any Governmental Authority without the consent of Parent (not to be unreasonably withheld, delayed or conditioned), and Parent shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority without consulting with and considering in good faith the views of the Company with respect thereto.
(d) To the extent permitted by Applicable Law, the parties shall jointly develop the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Competition Laws prior to their submission. Prior to the Closing, to the extent permitted by Applicable Law, each party hereto shall (i) consult with the other parties hereto with respect to, and shall provide any necessary or appropriate information with respect to (and, in the case of correspondence, provide the other parties (or their counsel) copies of), all filings made by such party with any Governmental Authority or any other information supplied by such party to, or meetings, conferences or correspondence with, any Governmental Authority in connection with this Agreement, the Mergers or the other transactions contemplated by this Agreement, (iiiii) permit the other parties, parties or the other parties’ legal counsel, their counsel to review in advance any filinginformation, submission correspondence or other communication filing (and the documents submitted therewith) intended to be given by it to any Governmental Entity or, in connection Authority; provided that such materials may be redacted to remove references to commercially or competitively sensitive information before being shared with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, Company with respect to this Agreement or the Merger)businesses of Parent and its Subsidiaries, (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (viii) to the extent permitted by such the applicable Governmental Entity or other PersonAuthority, give the other parties or their counsel the opportunity to attend and participate in any meetings or conferences with such meetings, conferences, conference calls, discussions Governmental Authority and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b(iv) shall not apply to if such party receives a request for additional information or documentary material from any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted Governmental Authority with respect to the transactions contemplated hereby under any applicable Law Mergers or if any suit is instituted by any Governmental Entity or any private party challenging any of the other transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigationby this Agreement, use its reasonable best efforts to resolve provide, or cause to be provided, after consultation with the other parties hereto, such additional information or material as promptly as practicable.
(e) Prior to the Closing, to the extent permitted by Applicable Law, the parties hereto agree to use their respective reasonable best efforts to cooperate to prepare for integration of the businesses and affairs of Parent, HoldCo and the Company from and after the Closing.
(f) The Company and each of the Parent Entities shall cooperate and use commercially reasonable efforts to determine whether any such objections consents, approvals, or challenges as such Governmental Entity or private party may have waivers are required to such transactions under such applicable Law so as be obtained from third parties to permit Company Material Contracts in connection with the consummation of the Mergers and the other transactions contemplated hereby on by this Agreement; provided that, seeking to obtain any such actions, consents, approvals or waivers from third parties shall not be a condition to the terms set forth consummation of the Mergers and the transactions contemplated hereunder and the Company shall not be required to pay any fees or expenses arising out of, related to or in this Agreement as soon as reasonably practicable after the date of this Agreement (connection with obtaining such consents and in any event no later than the Outside Date)approvals from third parties.
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby and make effective, as soon as reasonably practicable after possible following the date of this Agreement (and in any event no later than hereof, the Outside Date)Transactions, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause in (i) causing all of the conditions to Closing set forth in Article ARTICLE VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect the obtaining of all necessary applicationsactions or non-actions, noticeswaivers, petitionsconsents and approvals from Governmental Entities, filings and other documents and including under the Antitrust Laws (the Required Consents) prior to obtain as promptly as practicable the Effective Time, (iii) the obtaining of all consents, clearancesregistrations, waiversapprovals, licensespermits, ordersauthorizations and waivers necessary, proper or advisable to be obtained from, or renewed with third parties, (iv) the obtaining of all consents, approvals and authorizations under any Contract listed on Section 6.5(a)(iv) of the Company Disclosure Schedule; provided, that, the failure to obtain any of the consents, registrations, authorizationsapprovals, permits or authorizations referenced in clauses (ii) or (iv) above (other than any consents, approvals or events required pursuant to Section 7.1(b)) shall not constitute the failure to satisfy a condition to the obligation of either party to consummate the Transactions, (v) the execution and permits contemplated by delivery of any additional instruments necessary to consummate the Transactions, and to fully carry out the purposes of, this Agreement, (vi) refraining from taking any action that would reasonably be expected to impede, interfere with, prevent or materially delay the consummation of the Merger and (iiivii) taking unless there has been a Company Recommendation Change made in compliance with Section 5.2(b) (in the case of the Company’s obligation to use its reasonable steps as may best efforts), obtaining the Company Stockholder Approval; provided, however, that efforts in connection with the Financing shall be necessary or advisable to make all necessary filings governed by Section 6.3 and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)not this Section 6.5.
(b) To In furtherance and not in limitation of the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Company, Parent, Merger Sub, Merger Sub LLC and Sibelco agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable and, in any event, prior to January 5, 2018, (ii) make all filings listed on Section 6.5(b) of the Company Disclosure Schedule as promptly as practicable, and (iii) make all filings with other Governmental Entities relating to the Merger, and, in each case, supply as promptly as practicable any additional information and documentary material that may be formally or informally requested pursuant to the Antitrust Laws or by such authorities. Each of the parties shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the Antitrust Laws and the receipt of the Required Consents as soon as practicable. Each of the parties agrees that the use of “reasonable best efforts” in this Section 6.5 shall include proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing, testing, zoning, recharacterizing, expanding, other development of or disposition of such assets, businesses, relationships, contractual rights or arrangements of the Company, Sibelco, Parent or their respective Subsidiaries or Affiliates as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided, however, that the effectiveness of any such sale, divestiture, licensing or disposition shall be conditioned upon consummation of the Merger. In addition, Sibelco, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, Company shall use its reasonable best efforts to defend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any Order of any Governmental Entity (iwhether temporary, preliminary or permanent) that would prevent the consummation of the Closing. Notwithstanding any other provision in this Agreement to the contrary, neither the obligations of this Section 6.5(b) nor any other provision in this Agreement shall require the Company, Parent and their respective Subsidiaries and Affiliates, collectively, to agree to or effect a Material Divestiture.
(c) The parties shall jointly develop, and each of the parties shall consult and cooperate in all respects with each other party one another, and consider in good faith the views of one another, in connection with the form and content of any filing analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submission and submitted by or on behalf of any party, hereto in connection with proceedings under or relating to any Antitrust Law prior to their submission, provided that Parent shall have, after prior, good faith consultation with the Company and after considering, in good faith, the Company’s views and comments, principal responsibility for determining the strategy relating to any antitrust review by a Governmental Entity. Each of the Company, on the one hand, and Sibelco, Parent, Merger Sub and Merger Sub LLC, on the other hand, shall (i) promptly notify the other party of any communication, inquiry or investigation received by that party from, or given by it to, any Governmental Entity and, subject to Applicable Law, permit the other inquiry, including party to review in advance any proceeding initiated by proposed communication to any private such Governmental Entity and incorporate the other party’s reasonable comments, (ii) keep the other parties apprised of the status of matters relating not agree to completion of the transactions contemplated hereby and promptly inform the other parties of participate in any communication (including the initiation of meeting or discussion with any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any respect of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission investigation or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to inquiry concerning this Agreement or the Merger)Transactions unless, (iv) consult to the extent reasonably practicable, it consults with the other parties party in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonEntity, give gives the other parties party the opportunity to attend and participate in such meetingstherein and (iii) promptly furnish the other party with copies of all correspondence, conferencesfilings and written communications between them and their Affiliates and their respective officers, conference callsdirectors, discussions employees and communications. Notwithstanding the foregoingRepresentatives, the obligations set forth in this Section 6.5(b) shall not apply to on one hand, and any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby its respective staff on the terms set forth in other hand, with respect to this Agreement as soon as reasonably practicable after and the date of Transactions in order for such other party to meaningfully consult and participate in accordance with the preceding clauses (i) and (ii), provided that materials furnished pursuant to this Agreement (and in any event no later than the Outside Date)Section 6.5(c) may be shared on an outside-counsel-only basis to address reasonable attorney client privilege or other privilege or confidentiality concerns.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fairmount Santrol Holdings Inc.)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the CompanyParent, Parent and Merger Sub and the Company shall use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including by:
(i) using its reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing the Merger set forth in Article VII to be satisfied, satisfied or fulfilled;
(ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use using its reasonable best efforts to (i) cooperate in obtain all respects with each other party necessary consents, waivers and approvals, and to provide all necessary notices, under any Material Contracts in connection with any filing or submission this Agreement and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion consummation of the transactions contemplated hereby so as to maintain and promptly inform preserve the other parties benefits under such Contracts following the consummation of any communication the transactions contemplated by this Agreement;
(including the initiation of any proceedingiii) received by such party from any making all necessary registrations, declarations and filings with Governmental Entity and any material communication received from any private party, in each case, Authorities in connection with any pending or threatened litigation regarding any this Agreement and the consummation of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use using its reasonable best efforts to resolve any such objections obtain all necessary actions or challenges as such non-actions, waivers, clearances, consents, approvals, orders and authorizations from Governmental Entity or private party may have to such transactions under such applicable Law so as to permit Authorities in connection with this Agreement and the consummation of the transactions contemplated hereby on hereby;
(iv) executing and delivering any additional instruments reasonably necessary to consummate the terms set forth in transactions contemplated by, and to fully carry out the purposes of, this Agreement;
(v) avoiding the entry of, or having vacated or terminated, any decree, Order or judgment that would restrain, prevent or delay the Closing, including defending any lawsuits or other Legal Proceedings, whether judicial or administrative challenging this Agreement or the consummation of the transactions contemplated hereby, provided nothing shall require the Parent or Merger Sub to consent to a settlement of a Legal Proceeding; and
(vi) assisting the other parties in (A) making all necessary registrations, declarations and filings with Governmental Authorities in connection with this Agreement and the consummation of the transactions contemplated hereby, including by providing such information regarding itself, its Affiliates and their respective operations as soon as reasonably practicable after may be requested in connection with a filing by it or any of its Subsidiaries, (B) obtaining all necessary actions or non-actions, waivers, clearances, consents, approvals, Orders and authorizations from Governmental Authorities in connection with this Agreement and the date consummation of the transactions contemplated hereby, and (C) executing and delivering any additional instruments required to be made, obtained or delivered to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement (and in any event no later than the Outside Date)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Open Text Corp)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub The Company shall use its reasonable best efforts (and shall cause its Subsidiaries to take, use their respective reasonable best efforts) to take or cause to be takentaken all actions, the actions and to do, do or cause to be donedone all things, the things reasonably necessary, proper or advisable on its or their part under this Agreement and applicable Laws laws to cooperate with the Investors and regulations to consummate and make effective the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be takenAgreement, the actions necessary to cause Preferred Term Sheet, the conditions to Closing set forth in Article VII to be satisfiedPlan Terms, the GM Settlement and the Plan, including:
(iia) preparing and filing as promptly as practicable all documents documentation to effect all necessary applications, notices, petitions, filings reports and other documents filings and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits authorizations necessary or advisable to be obtained from any third party or governmental entity; provided, however, that, notwithstanding the foregoing, in connection with obtaining such consents, the Company shall not, without the prior written consent of AXXX in its reasonable discretion, pay or commit to pay any person or entity whose consent is being solicited in cash or other consideration to the extent such payment could reasonably be expected to prevent the Company from, at all times prior to the satisfaction of the condition with respect to the Business Plan in accordance with Section 9(a)(xxviii), complying in all material respects with the Draft Business Plan (and, if amended in a manner that satisfies the condition with respect to amendments to the Draft Business Plan set forth in Section 9(a)(xxviii), as so amended) and, at all times after the satisfaction of the condition with respect to the Business Plan in accordance with Section 9(a)(xxviii), complying in all material respects with the Business Plan (and, if amended in a manner that satisfies the condition with respect to the Business Plan set forth in Section 9(a)(xxviii), as so amended);
(b) defending any lawsuits or other actions or proceedings, whether judicial or administrative, challenging this Agreement, the Preferred Term Sheet, the GM Settlement, the Plan or the Transaction Agreements or any other agreement contemplated by this Agreement, the Preferred Term Sheet, the PSA, the GM Settlement, the Plan or the Transaction Agreements or the consummation of the transactions contemplated hereby and thereby, including seeking to have any stay or temporary restraining order entered by any court or other governmental entity vacated or reversed;
(c) executing, delivering and filing, as applicable, any additional ancillary instruments or agreements necessary to consummate the transactions contemplated by this Agreement, the Preferred Term Sheet, the PSA, the GM Settlement, the Plan or the Transaction Agreements and to fully carry out the purposes of this Agreement, the Preferred Term Sheet, the PSA, the GM Settlement, the Plan, the Transaction Agreements and the transactions contemplated hereby and thereby including, without limitation: (i) employment agreements and other compensation arrangements with senior management of the Company relating to compensation, benefits, supplemental retirement benefits, stock options and restricted stock awards, severance and change in control provisions and other benefits on market terms (as determined by the Company’s board of directors based on the advice of Wxxxxx-Xxxxx and reasonably acceptable to AXXX); (ii) agreements and other arrangements acceptable to AXXX or otherwise ordered by the Bankruptcy Court with respect to claims against the Company of former members of the Company’s management and members of the Company’s management, if any, who are resigning or being terminated in accordance with the implementation of the Plan; (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of a shareholders agreement among the Company, Parent and Merger Sub shallcertain of the Investors reasonably satisfactory to AXXX (the “Shareholders Agreement”); (iv) a registration rights agreement (the “Registration Rights Agreement”) among the Company and the Investors, consistent with the Preferred Term Sheet and reasonably satisfactory to AXXX to the extent that the material terms of such Registration Rights Agreement would have a material impact on the Investors’ proposed investment in the Company, and providing that the Company shall (a) as soon as practicable after the Closing Date, and in any event no later than seven (7) days after the Closing Date, prepare and file with the Commission a registration statement, including all exhibits thereto, pursuant to Rule 415 under the Securities Act registering offers and sales by the Investors, any Related Purchasers and the Ultimate Purchasers of the Unsubscribed Shares, the Direct Subscription Shares and the Series B Preferred Shares (the “Resale Registration Statement” and, together with the final prospectus contained in the Resale Registration Statement as of its effective date (including information, if any, omitted pursuant to Rule 430A and subsequently provided pursuant to Rule 424(b) under the Securities Act), and any amended form of such prospectus provided under Rule 424(b) under the Securities Act or contained in a post-effective amendment to the Resale Registration Statement) and any issuer free writing prospectus as defined in Rule 433 under the Securities Act used in connection with the efforts referenced above to obtain all requisite approvalsresale of such shares, clearances and authorizations for the transactions contemplated hereby, “Resale Registration Documents”); (b) use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any cause the Resale Registration Statement to be declared effective by the Commission as soon as practicable after the filing or submission thereof, and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, event no later than thirty (ii30) keep days after the other parties apprised Closing Date; (c) obtain such comfort letters from the Company’s independent certified public accountants addressed to the Investors covering such matters of the status type customarily covered by comfort letters and as AXXX reasonably requests; and (d) obtain a customary opinion or opinions and negative assurance statement, in customary form and scope from counsel to the Company to be furnished to each Investor; (v) an amended and restated certificate of matters relating to completion incorporation and amended by-laws of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private partyCompany, in each case, in connection that is consistent with this Agreement, the Plan Terms and the Preferred Term Sheet; provided, that the amended and restated certificate of incorporation of the Company to be effective immediately following the Effective Date shall prohibit (A) for so long as AXXX or its Affiliates, as the case may be, owns any pending shares of Series A-1 Preferred Stock, any transactions between the Company or threatened litigation regarding any of its Subsidiaries, on the transactions contemplated herebyone hand, (iii) permit and AXXX or its Affiliates, as the case may be, on the other partieshand (including any “going private transaction” sponsored by AXXX or its Affiliates), unless such transaction shall have been approved by directors constituting not less than 75% of the number of Common Directors, and (B) any transaction between the Company or any of its Subsidiaries, on the one hand, and a director, other than a director appointed by holders of Series A Preferred Stock, on the other parties’ legal counselhand, unless such transaction shall have been approved by directors having no material interest in such transaction (a “Disinterested Director”) constituting not less than 75% of the number of Disinterested Directors (such amended and restated certificate of incorporation and amended bylaws are herein referred to review any filing, submission or other communication given by it to any Governmental Entity oras the “Amended and Restated Constituent Documents”); and (vi) the Series A Certificate of Designations and the Series B Certificate of Designations, in connection each case, that is consistent with any pending or threatened litigation by any private partythe terms set forth in the Preferred Term Sheet. Subject to applicable laws and regulations relating to the exchange of information, with any other Person the Investors and to receive final versions of the same (it being understood that each party shall, without limitation, Company shall have the right to review in advance, subject to applicable Laws relating and to the exchange of information, extent practicable each will consult with the other on all of the information relating to such partyInvestors or the Company, as the case may be, and any of its their respective Subsidiaries, which that appears in any filing made with, or written materials submitted to, any third party or and/or any Governmental Entity, governmental entity in connection with respect to the transactions contemplated by this Agreement or the Merger), (iv) consult with Plan. In exercising the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Lawforegoing rights, each of the Company, Parent Company and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges Investors shall act reasonably and as such Governmental Entity or private party may have to such transactions under such applicable Law so promptly as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)practicable.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Delphi Corp)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent parties hereto shall (and Merger Sub shall cause each of their applicable affiliates to) use its reasonable best efforts to take, or cause to be taken, the actions all actions, and use its reasonable best efforts to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate, as promptly as practicable, the Stock Purchase and the other transactions contemplated by this Agreement, including, with respect to Buyer, complying with and (upon request by the Sellers) undertaking to any Governmental Authority (including Gaming Authorities) to comply and cause its affiliates to comply with its obligations under Section 8 of the Company Confidentiality Agreement and making, and causing its affiliates to make, any similar undertakings and representations to such Governmental Authority to the extent necessary to permit the Closing to occur as soon as possible following the date hereof. Without limiting the foregoing, each of the parties agree to use its respective reasonable best efforts to (i) cause the conditions to the Stock Purchase set forth in Section 1.03 to be satisfied as promptly as practicable and to remain satisfied through the Fourth Closing, (ii) obtain promptly all necessary consents, approvals, orders, waivers, findings of qualification and/or suitability and authorizations of, actions or non-actions by, any Governmental Authority (including Gaming Authorities) or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Stock Purchase, and make all necessary registrations, declarations and filings with, and notices to, any Governmental Authorities (including pursuant to any applicable Antitrust Law necessary to start any applicable waiting period and including under Gaming Laws) and take all reasonable steps as may be necessary to obtain an approval from, or to avoid a suit, action, proceeding or investigation by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Stock Purchase; provided, that, in no event shall the Sellers or any of their subsidiaries be required to pay, prior to the Closing, any fee, penalty or other consideration to obtain any consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement, including the Stock Purchase, other than amounts that are advanced or reimbursed substantially simultaneously by Buyer and (iii) execute and deliver any additional instruments necessary to consummate the Stock Purchase and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and applicable Laws to carry out fully the purposes of this Agreement. In no event shall the Sellers be required to agree to take or enter into any action which is not conditioned upon the consummation of the Stock Purchase; provided, that, notwithstanding the foregoing, it is understood and regulations agreed that any failure by the Sellers to agree to any such obligation or concession by reason of Buyer’s withholding its written consent from the Sellers to do so shall not constitute a breach by the Sellers of this Section 4.02.
(b) Without xxxxxx the generality of the parties’ undertakings pursuant to Section 4.02(a), Buyer shall take any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law or Gaming Law that may be asserted by any Governmental Authority (including Gaming Authorities) so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Stock Purchase, as promptly as practicable, and in any event prior to the Outside Date (as defined in Section 5.13(b)(i)), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders or otherwise, (i) the sale, divestiture or disposition of its or its affiliates’ assets, properties, businesses, or equity interests, and (ii) the entry into such other arrangements, agreements or amendments as are necessary or advisable in order to obtain any required Gaming Approvals or other regulatory approvals, and to avoid the entry of, or to have vacated, lifted, reversed or overturned any Legal Restraint, whether temporary, preliminary or permanent, that would restrain, delay or prevent the consummation of the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement possible.
(and in any event no later than the Outside Date), including c) Each party agrees (i) using reasonable best efforts to takefile all notifications and approval requests of any kind required under any applicable Antitrust Law or Gaming Law with respect to this Agreement and the transactions contemplated hereby, including the Stock Purchase (including all required initial applications and documents in respect of officers, directors, affiliates and any natural person or cause entity required to qualify, be takenfound suitable or be licensed in connection with obtaining the Gaming Approvals and including, the actions necessary where appropriate, indications of further information to cause the conditions to Closing set forth come by supplementary filing) as soon as reasonably practicable but in Article VII to be satisfiedno event later than any date required by Law or a Governmental Authority, (ii) preparing and filing to supply as promptly as practicable all documents reasonably practicable, but in no event later than any date required by Law or a Governmental Authority, any additional information and documentary material in its possession that may be requested pursuant to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreementany applicable Antitrust Law or Gaming Law, and (iii) taking the to use its reasonable steps as may best efforts to take or cause to be necessary taken all actions necessary, proper or advisable consistent with, and subject to, the other provisions of this Section 4.02 to make all necessary filings (A) cause the expiration or termination of the applicable waiting periods under any applicable Antitrust Law as promptly as reasonably practicable, including, if possible under applicable Law, by requesting early termination thereof, and (B) obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals Gaming Approvals required to permit the parties hereto to consummate the transactions contemplated by this Agreement. The Sellers and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub Buyer shall, in connection with the efforts referenced above referred to in Section 4.02(a) to obtain all requisite approvals, clearances approvals and authorizations for the transactions contemplated herebyby this Agreement under any applicable Antitrust Law or Gaming Law, use its reasonable best efforts to (iA) cooperate in good faith in devising and implementing the strategy for obtaining any necessary clearances or required approvals under any Antitrust Laws or Gaming Laws; (B) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any a private party, ; (iiC) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties party reasonably informed of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, any Governmental Entity Authority and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, hereby (iiiother than to the extent relating to private or personal information pertaining to any individual which may remain confidential); and (D) reasonably permit the other parties, or the other parties’ legal counsel, party to review any filing, submission or other material communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyto, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, meeting or conference, conference callwhere reasonably practicable to do so, discussion or communication with, any such Governmental Entity Authority or, in connection with any proceeding by any a private party, with any other Person Person, and (v) to the extent permitted by such applicable Governmental Entity Authority or other Person, give the other parties party the opportunity to attend and participate in such meetingsmeetings and conferences (telephonic or in person), conferences, conference calls, discussions where reasonably practicable to do so and communications. Notwithstanding in good faith take the foregoing, other party’s views into account regarding the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject overall strategic direction of Section 6.18obtaining such clearances.
(cd) If In furtherance and not in limitation of the covenants of the parties contained in Section 4.02(a), subject to the last sentence of Section 4.02(a), if any objections are asserted with respect to the transactions contemplated hereby under any applicable Antitrust Law or Gaming Law or if any suit proceeding, whether judicial or administrative, is instituted (or threatened in writing to be instituted) by any Governmental Entity Authority or any other private party challenging any of the transactions contemplated hereby as violative of any applicable LawAntitrust Law or Gaming Law or which would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Stock Purchase and the other transactions contemplated by this Agreement, each of Buyer and the Company, Parent and Merger Sub Sellers shall, subject to the other provisions of this Section 6.18 in the event of any Transaction Litigation4.02, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law suits so as to permit consummation of the transactions contemplated hereby on the terms set forth in by this Agreement as soon as reasonably practicable after the date of this Agreement (and in Agreement, including seeking to have any event no later than the Outside Date)stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed.
Appears in 1 contract
Samples: Stock Purchase Agreement (MacAndrews & Forbes Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and the other Transactions as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (iiA) preparing and filing as promptly as practicable all documents to effect filing, in consultation with the other Party, all necessary or advisable applications, notices, petitions, filings and other documents required to be prepared or filed by such Party as promptly as practicable and advisable after the date hereof, and (B) using its reasonable best efforts to obtain as promptly as practicable and advisable and in any event prior to the Outside Date all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits contemplated authorizations necessary or advisable to be obtained by this Agreement, such Party from any third party and/or any Governmental Entity (including under the HSR Act) in order to consummate the Merger or any of the other Transactions and (iiiii) taking cooperating with the other Party required to file such applications, notices, petitions, filings and other documents by using its reasonable best efforts to take all steps as may be necessary or advisable to make in connection therewith, including providing all necessary filings information and assistance reasonably requested by such Party.
(b) Each of Seaways and Diamond shall, in connection with the efforts referenced in Section 6.2(a) to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances permits, and authorizations for the transactions contemplated herebyTransactions under the HSR Act, use its reasonable best efforts to (i) promptly file or cause to be filed, within fifteen (15) business days from the date hereof, or such later date as may be agreed between Seaways and Diamond, all required filings under the HSR Act; (ii) cooperate in all respects and consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party under any private partyAntitrust Law, (ii) keep including by allowing the other parties apprised Party to have a reasonable opportunity to review and comment on drafts of the status of matters relating to completion of the transactions contemplated hereby any filings and submissions; (iii) promptly inform the other parties Party of any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity with respect to any Antitrust Law, by promptly providing copies to the other Party of any such written communications, and of any material communication received from any private party, in each case, or given in connection with any pending or threatened litigation proceeding by a private party under any Antitrust Law, in each case regarding any of the transactions contemplated hereby, Transactions; (iiiiv) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right Party a reasonable opportunity to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, substantive telephone call or conference call, discussion or communication with, the DOJ, the FTC or any such other Governmental Entity with respect to the subject matter of this Section 6.2(b), or, in connection with any proceeding by a private party under any private partyAntitrust Law, with any other Person and (v) to the extent permitted by such the DOJ, the FTC or any other applicable Governmental Entity or other PersonPerson with respect to the subject matter of this Section 6.2(b), give the other parties the Party a reasonable opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding any in-person meetings with the foregoingDOJ, the obligations set forth in this Section 6.5(b) shall not apply to FTC or any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted other Governmental Entity or other Person with respect to the transactions contemplated hereby subject matter of this Section 6.2(b); provided that (x) any such written communications provided under any this Section 6.2(b) may be redacted as necessary to address attorney-client privilege or to comply with applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of (provided, however, that the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, withholding Party shall use its reasonable best efforts to resolve make appropriate substitute arrangements to permit reasonable disclosure not in violation of any such objections attorney-client privilege or challenges Law); (y) portions of such copies that are competitively sensitive in the view of the disclosing party’s outside counsel may be redacted as such Governmental Entity necessary or private party may have to such transactions under such applicable Law designated so as to permit be provided to outside antitrust counsel only.
(c) Each of Seaways and Diamond shall use its reasonable best efforts to obtain the expiration or termination of all waiting periods and all consents, waivers, authorizations and approvals of all third parties, including Governmental Entities, necessary, proper or advisable for the consummation of the transactions contemplated hereby on Transactions and to provide any notices to third parties required to be provided prior to the terms set forth Effective Time; provided that neither Diamond nor Seaways shall, without the prior written consent of the other Party, incur any significant expense or liability, enter into any significant new commitment or agreement or agree to any significant modification to any contractual arrangement to obtain such consents or certificates in this Agreement each case, that would have a Diamond Material Adverse Effect or Seaways Material Adverse Effect, as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)case may be.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject From and after the Execution Date and prior to the terms and conditions earlier of this Agreementthe Closing or the Termination Date, each party shall, and shall cause each of the Companyits controlled Affiliates to, Parent and Merger Sub shall use its reasonable best efforts to take, as promptly as reasonably practicable, or cause to be taken, the actions as promptly as reasonably practicable, all actions, and to do, as promptly as reasonably practicable, or cause to be done, as promptly as reasonably practicable, and to reasonably assist and reasonably cooperate with the other parties in doing, all things necessary, proper or advisable on its part under this Agreement to consummate and applicable Laws make effective the transactions contemplated hereby, including preparing and regulations filing all documentation to effect all notices, withdrawals of any Specified Filings, reports, and other filings and to obtain all consents, approvals, registrations, authorizations, waivers, Permits, and Orders necessary to be obtained from any third party (including any Governmental Authority) in order to consummate the transactions contemplated hereby as soon as reasonably practicable after hereby. Without limiting the date applicability of this Agreement (the foregoing, controlling Affiliates of TWG shall, and in any event no later than the Outside Date)shall cause their controlled Affiliates to, including (i) using use reasonable best efforts to take, comply promptly with any inquiries or cause to be taken, requests for information from Governmental Authorities in connection with obtaining the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)Required Approvals.
(b) To Without limiting the extent permissible generality of Section 5.06(a), each party shall, as promptly as reasonably practicable following the Execution Date, file, make, or otherwise cause to be filed or made, and assist the other party in filing, making or otherwise causing to be filed or made (i) the notification and report form required under applicable Law the HSR Act or any ruleForeign Antitrust Law, regulation or restriction (ii) all notifications and other filings required in order to obtain the Required Approvals, including any amendments to any filings (other than any Specified Filings) made prior to the Execution Date pursuant to the Original Merger Agreement and the transactions contemplated thereby and withdrawals of any Specified Filings and (iii) all other pre-Closing applications, notifications, filings requests for consent, and other information and forms required to be filed or made with any Governmental EntityAuthority in connection with the transactions contemplated hereby. Prior to Closing (but subject to the last sentence of Section 5.24), each of the Company, Parent and Merger Sub no party shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyby this Agreement, use its reasonable best efforts to (i) cooperate in all respects file or submit any application with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated request for non-disapproval by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, Authority with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).inter-
Appears in 1 contract
Samples: Merger Agreement (Assurant Inc)
Reasonable Best Efforts. (a) Subject to The Contributors and the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub Partnership shall use its their reasonable best efforts to take, or cause to be taken, the actions and to do, or cause to be done, the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits consents required by or necessary for the transactions contemplated by this Agreement, (ii) to ensure that all of the conditions to the obligations of the Partnership and the Contributors contained in Sections 6.1 and 6.2, respectively, are satisfied timely and (iii) taking to either prior to or as promptly as practicable after Closing substitute the reasonable steps Partnership for KMI or its affiliates as may be necessary a guarantor with respect to the items set forth on Schedule 5.5 (“Replacement Guarantees”). The Partnership shall, and shall cause each of the Companies, jointly and severally, to indemnify and hold harmless KMI and its affiliates from and against any and all Damages arising from or advisable relating to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings item set forth on Schedule 5.5 that is not either released or other proceedings)expired in accordance with its terms.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each Each of the Company, Parent Partnership and Merger Sub shall, in connection the Contributors acknowledges that certain actions may be necessary with respect to the efforts referenced above to obtain all requisite approvals, clearances matters and authorizations for the transactions actions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing by this Section 5.5 such as making notifications and obtaining consents or submission and in connection with any investigation approvals or other inquiry, including any proceeding initiated by any private party, (ii) keep clearances that are material
EXHIBIT 2.1 to the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any consummation of the transactions contemplated hereby, (iii) permit and each of the other parties, Partnership and the Contributors agree to take such action as is reasonably necessary to complete such notifications and obtain such consents or the other parties’ legal counsel, to review any filing, submission approvals or other communication given by it clearances; provided, however, that nothing in this Section 5.5 or elsewhere in this Agreement shall require any Party to hold separate or make any Governmental Entity ordivestiture of any asset or otherwise agree to, and no consents or approvals or other clearances shall be deemed to be obtained for purposes of this Agreement if such consent or approval or other clearance contains any restriction on their operations or other materially burdensome condition which would in connection with any pending such case be material to the assets, liabilities or threatened litigation by business of any private party, with any other Person and to receive final versions of the same (Contributors, the Partnership, the Companies or any of their respective subsidiaries in order to obtain any consent or approval or other clearance required by this Agreement; provided, further, that it being understood that each party shall, without limitation, have the right such reasonable actions shall not include any requirement to review in advance, subject offer or grant financial accommodations to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, to remain secondarily liable with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18liability.
(c) If any objections are asserted with respect to Without limiting anything in this Section 5.5, the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, Partnership shall use its reasonable best efforts to resolve any issue and sell Common Units (the “Equity Offering ”) and to complete Partnership Debt Financings, in each case as described on Schedule 5.5(c), and to effect Credit Facility Borrowings that, together with the Equity Offering and Partnership Debt Financings, will provide the Partnership (before or contemporaneously with the Closing) with funds sufficient to consummate the Transaction on or before May 2, 2014, or such objections or challenges other date as such Governmental Entity or private party the Parties may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth mutually agree upon in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)accordance with Section 2.1.
Appears in 1 contract
Samples: Contribution Agreement (El Paso Pipeline Partners, L.P.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party hereto will use its reasonable best efforts to take, or cause to be taken, the actions in good faith, all actions, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and to cause to be satisfied all conditions precedent to its obligations under this Agreement, in each case as soon as reasonably practicable practicable, after the date of this Agreement (and in any event no later than hereof, including, consistent with the Outside Date)foregoing, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with the objective of being in a position to consummate the Merger as promptly as practicable following the date of this Agreement, all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all consents, clearanceswaivers, waiversassignments, assumption agreements, licenses, ordersOrders, registrations, authorizationsapprovals, approvals permits, rulings, authorizations and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be clearances necessary or advisable to make all necessary filings be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (collectively, the “Required Approvals”), and (ii) using its reasonable best efforts to obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)the Required Approvals.
(b) To Each of Parent and the extent permissible under applicable Law Company shall use its reasonable best efforts to cooperate in all respects with each other in connection with any filing or submission, in any, to or any ruleinvestigation or proceeding by the Federal Trade Commission (the “FTC”), regulation the Antitrust Division of the Department of Justice (the “DOJ”) or restriction of any other Governmental Entity, each .
(c) Each of the Company, Parent and Merger Sub the Company shall, in connection with the efforts referenced above in Section 6.3(a) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebyRequired Approvals, use its reasonable best efforts to (i) cooperate in all respects with each subject to applicable Law, permit the other party to review and discuss in advance, and consider in good faith the views of the other in connection with with, any filing proposed written or submission and in connection with any investigation material oral communication (or other inquirycorrespondence or memoranda) between it and any Governmental Entity, including any proceeding initiated by any private party, and (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the each other parties of and supply to such other party any communication (including the initiation of any proceedingor other correspondence or memoranda) received by such party from from, or given by such party to, the DOJ, the FTC or any other Governmental Entity and any material communication received from any private partyEntity, in each case, case regarding the Merger contemplated hereby.
(d) In furtherance and not in connection with any pending or threatened litigation regarding any limitation of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions covenants of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth contained in this Section 6.5(b) shall not apply to any Transaction Litigation6.3, which is the subject of Section 6.18.
(c) If if any objections are asserted with respect to the transactions Merger contemplated hereby under any applicable Law antitrust or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable competition Law, each of the Company, Parent and Merger Sub shall, subject the Company agrees to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts (which under no circumstances shall involve divesting of material assets) to resolve any such objections antitrust concerns, federal, state, foreign or challenges as such Governmental Entity private, obtain all Required Approvals and obtain termination of the waiting period under the HSR Act or private party may have to such transactions under such any other applicable Law and the termination of any outstanding Orders prohibiting the Closing so as to permit consummation of the transactions Merger as soon as practicable. In furtherance and not in limitation thereof, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened in writing to be instituted) challenging any transaction contemplated hereby by this Agreement as violative of any Law or regulation, or if any statute, rule, regulation, Order or injunction is enacted, entered, promulgated or enforced by a Governmental Entity that would make the Merger illegal or would otherwise prohibit or materially impair or delay the consummation the Merger, the Company shall cooperate with Parent in all respects in responding thereto, and each shall use its respective reasonable best efforts to contest, resist and/or attempt to resolve any such action or proceeding and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger contemplated by this Agreement, and to have such statute, rule, regulation, executive Order repealed, rescinded or made inapplicable so as to permit consummation of the Merger.
(e) The Company shall provide, and shall cause its subsidiaries to provide, all reasonable cooperation in connection with the arrangement of any debt financing as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or its subsidiaries), including without limitation, (i) providing assistance with respect to the review and granting of mortgages and security interests in collateral for such financing, and obtaining any consents associated therewith, and (ii) obtaining, or authorizing Parent or its Representatives to obtain, estoppels and certificates from tenants, lenders and ground lessors in form and substance reasonably satisfactory to any potential lender. Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by it or its subsidiaries in performing their obligations under this Section 6.3(e).
(f) Parent shall use its reasonable best efforts to arrange and obtain debt financing (the “Debt Financing”) to fund all or a portion of the Merger Consideration. For the avoidance of doubt, if the Debt Financing has not been obtained, Parent shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the conditions set forth in this Agreement as soon as reasonably practicable after the date Sections 7.1 and 7.2 of this Agreement and to Parent’s rights under Section 8.1, regardless of whether Parent have complied with all of their other obligations under this Agreement (and in any event no later than the Outside Dateincluding their obligations under this Section 6.3(f).
Appears in 1 contract
Samples: Merger Agreement (Inland Retail Real Estate Trust Inc)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall Parties agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the transactions contemplated hereby as soon as reasonably practicable after most expeditious manner practicable, the date of this Agreement (Share Sale and in any event no later than the Outside Date)other Transactions, including (i) using reasonable best efforts to take, or cause to be taken, accomplish the actions following: (i) the taking of all commercially reasonable acts necessary to cause the conditions to Closing precedent set forth in Article VII to be satisfied, ; (ii) preparing and filing as promptly as practicable all documents to effect the obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions, waivers, licensesconsents, ordersapprovals, orders and authorizations from Governmental Authorities and the making of all necessary registrations, authorizationsdeclarations and filings (including registrations, approvals declarations and permits contemplated by this Agreementfilings with Governmental Authorities, if any) and (iii) the taking the of all commercially reasonable steps as may be necessary or advisable to make avoid any Proceeding; (iii) the delivery of all necessary filings notices to, and obtain the obtaining of all such consents, clearancesapprovals or waivers from, waivers, licenses, orders, registrations, authorizations, approvals third parties required as a result of the Transactions; and permits (including providing all necessary information and documentary material and providing personnel as iv) the execution or delivery of any additional instruments reasonably necessary to attend any regulatory meetingsconsummate, hearings or other proceedings)and to fully carry out the purposes of, the Transactions.
(b) To Without limiting the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each generality of the Companyforegoing, Parent and Merger Sub neither Purchaser nor the Company shall, in connection with and each shall cause its Affiliates not to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the efforts referenced above assets of or equity in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to obtain all requisite approvalsacquire any assets, clearances and authorizations for if the transactions contemplated herebyentering into of a definitive agreement relating to or the consummation of such acquisition, use its reasonable best efforts merger or consolidation would reasonably be expected to (i) cooperate impose a material delay in all respects with each other party in connection with the obtaining of, or increase the risk of not obtaining, any filing consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or submission and in connection with order of any investigation Governmental Authority necessary to consummate the transactions contemplated hereby or other inquiry, including the expiration or termination of any proceeding initiated by any private partyapplicable waiting period, (ii) keep increase the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties risk of any communication (including Governmental Authority entering an order prohibiting the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on or (iii) delay the terms set forth in this Agreement as soon as reasonably practicable after consummation of the date of this Agreement (and in any event no later than the Outside Date)transactions contemplated hereby.
Appears in 1 contract
Samples: Business Combination Agreement (Magnum Opus Acquisition LTD)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this AgreementAgreement and applicable law, each of the Company, Parent and Merger Sub parties hereto shall use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, the all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby by this Agreement as soon as reasonably practicable, including such actions or things as any other party hereto may reasonably request in order to cause any of the conditions to such other party's obligation to consummate such transactions specified in Article VII to be fully satisfied or to determine whether such conditions have been satisfied. Without limiting the generality of the foregoing, the parties shall (and shall cause their respective directors, officers and Subsidiaries, and use their reasonable best efforts to cause their respective Affiliates, employees, agents, attorneys, accountants and representatives, to) consult and fully cooperate with and provide reasonable assistance to each other in (i) the preparation and filing with the Commission of the Registration Statement, the Company Preliminary Proxy Statement, the Parent Preliminary Proxy Statement, the Company Proxy Statement, the Parent Proxy Statement and any necessary amendments or supplements to any of the foregoing; (ii) seeking to have each such preliminary proxy statement cleared, and the Registration Statement declared effective, by the Commission as soon as reasonably practicable after filing; (iii) subject to the date third sentence of this Agreement (and in any event no later than the Outside DateSection 3.2(c), including taking such actions as may reasonably be required under applicable state securities or blue sky laws in connection with the issuance of the Stock Merger Consideration; (iiv) using all reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesapprovals, waivers, licenses, orderspermits, authorizations, registrations, authorizationsqualifications, approvals and permits contemplated by this Agreementor other permissions or actions by, and giving all necessary notices to and making all necessary filings with and applications and submissions to, any Governmental Entity or other Person; (iiiv) taking filing all pre-merger notification and report forms required under the Xxxx-Xxxxx Act and responding to any requests for additional information made by any Governmental Entity pursuant to the Xxxx-Xxxxx Act; (vi) using all reasonable steps best efforts to cause to be lifted any permanent or preliminary injunction or restraining order or other similar order issued or entered by any court or Governmental Entity (an "Injunction") of any type referred to in Section 7.1(e), or to cause to be rescinded or rendered inapplicable any statute, rule or regulation of any type referred to in Section 7.2(d); (vii) providing all such information about such party, its Subsidiaries and its officers, directors, partners and Affiliates to, and making all applications and filings with, any Governmental Entity or other Person as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, reasonably requested in connection with any of the efforts referenced above to obtain all requisite approvalsforegoing; and (viii) in general, clearances consummating and authorizations for making effective the transactions contemplated hereby; provided, use its reasonable best efforts however, that in order to (i) cooperate in all respects with each other party in connection with obtain any filing or submission and in connection with any investigation consent, approval, waiver, license, permit, authorization, registration, qualification, or other inquirypermission or action or the lifting of any Injunction, including or causing to be rescinded or rendered inapplicable any proceeding initiated by any private partystatute, rule or regulation, referred to in clause (iv) or (vi) of this sentence, (iiA) keep the no party shall be required to pay any consideration (other parties apprised of the status of matters relating than customary filing and similar fees), to completion of the transactions contemplated hereby and promptly inform the other parties divest itself of any communication (including of, or otherwise rearrange the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private partycomposition of, in each case, in connection with any pending its assets or threatened litigation regarding to agree to any of the transactions contemplated hereby, (iii) permit the other parties, foregoing or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and condition or requirement that is materially adverse or burdensome; (B) none of Parent, its Controlling Parties nor their respective Affiliates shall be required to receive final versions take any action pursuant to the foregoing if the taking of such action is reasonably likely to result in the imposition of a condition or restriction of the same type referred to in Section 7.2(d); and (it being understood that each party shallC) without the Parent's prior written consent, without limitationthe Company shall not, have and shall not permit any of its Subsidiaries to, amend any License or Contract, pay any consideration or make any agreement or reach any understanding or arrangement other than in the right to review in advance, subject ordinary course of business consistent with prior practice. Subject to applicable Laws laws relating to the exchange of information, all of the information relating prior to such party, and making any of its respective Subsidiaries, which appears in any application to or filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonPerson in connection with this Agreement, give each party shall provide the other parties party with drafts thereof and afford the other party a reasonable opportunity to attend and participate in comment on such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18drafts.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 1 contract
Samples: Merger Agreement (Actv Inc /De/)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the Merger and the other transactions contemplated hereby by this Agreement as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals permits and permits authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement, Agreement and (iiiii) taking the all reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, ordersregistrations, registrationspermits, authorizations, orders and approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings). In furtherance and not in limitation of the foregoing, each of the Company and Parent agrees to make, as promptly as practicable after the date of this Agreement, (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, (B) appropriate filings required by the Transaction Approvals and (C) all other necessary filings with any other Governmental Entity with respect to the transactions contemplated hereby and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to such requirements and to use its reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act in the most expeditious manner practicable. Notwithstanding the foregoing, neither Parent nor the Company shall, and shall cause their respective Representatives not to, participate in any meeting with any Governmental Entity in connection with the Transaction Approvals unless it consults with the other party in advance and gives the other party the opportunity to attend or participate to the extent permitted by such Governmental Entity. The Company and Parent will each request early termination of the waiting period with respect to the Merger under the HSR Act.
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any a Governmental Entity, each of the Company, Company and Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite material approvals, clearances and authorizations for the transactions contemplated herebyby this Agreement under the HSR Act or any other approval of a Governmental Entity, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any a private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties party of any communication (including the initiation of any proceeding) received by such party from from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, and provide to the other party, in advance of filing, all filings and submissions to be made by such party, such that the other party has a reasonable opportunity to comment thereon, such comments to be taken into account by the filing party, (iii) permit the other partiesparty, or the other parties’ party’s legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyto, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, meeting or conference call, discussion or communication with, the DOJ, the FTC or any such other Governmental Entity or, in connection with any proceeding by any a private party, with any other Person and (viv) to the extent permitted by such Governmental Entity or other Person, give the other parties party the opportunity to attend and participate in such meetings, meetings and conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Company and Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, shall use its reasonable best efforts to resolve any such objections or challenges challenge as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby by this Agreement on the terms and conditions set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of Parent, Merger Subsidiary and the Company, Parent and Merger Sub Company shall use its their reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable (ii) obtaining and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this AgreementAgreement (including, without limitation, the Required Consents). Each of Parent, Merger Subsidiary and (iii) taking the reasonable steps Company agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or advisable desirable in order to make all necessary filings consummate or implement expeditiously the Merger and obtain all such consentsthe transactions contemplated by this Agreement. Notwithstanding any other provision of this Agreement, clearancesthe parties hereto understand and agree that the reasonable best efforts of any party hereto shall be deemed to include compliance with the requirements of Section 8.02(b) hereof, waiversbut shall not otherwise require any entry into a settlement, licensesundertaking, ordersconsent, registrationsdecree, authorizations, approvals and permits stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby or any divestiture or holding separate (including providing all necessary information and documentary by establishing a trust or otherwise), or taking of any other material and providing personnel as necessary action (or otherwise agreeing to attend do any regulatory meetingsof the foregoing) with respect to its or the Surviving Corporation’s or any of their respective Subsidiaries’ or Affiliates’ businesses, hearings assets or other proceedings)properties.
(b) To In furtherance and not in limitation of the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances Company shall make an appropriate filing of a Notification and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating Report Form pursuant to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted HSR Act with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges promptly as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than within 10 Business Days of the Outside Date)date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. In connection with the foregoing, the parties agree to (a) cooperate with each other in preparing and submitting such HSR Act filings, which cooperation shall include furnishing the other with any information or documents in such party’s possession that may be reasonably required in connection with such filings; (b) furnish each other with correspondence from or to, and notify each other of any other communications with, the Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) which correspondence relates to the transactions contemplated hereby; and (c) to the extent practicable, permit each other to participate in any conferences with the FTC or the DOJ.
Appears in 1 contract
Samples: Merger Agreement (Liberty Corp)
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of Parent, Purchaser and the Company, Parent and Merger Sub Company shall use its their reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (including the Offer and in any event no later than the Outside DateMerger), including (i) using its reasonable best efforts to take, or to:
(a) cause to be taken, the actions necessary to cause Offer Conditions and the conditions to Closing the Merger set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary satisfied or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).fulfilled;
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvalsnecessary or appropriate consents, clearances waivers and authorizations for the transactions contemplated hereby, use its reasonable best efforts approvals under any contracts to (i) cooperate in all respects with each other which it is a party in connection with any filing or submission this Agreement and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion consummation of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation Offer and the Merger) so as to maintain and preserve the benefits under such contracts following the consummation of the transactions contemplated hereby (including the Offer and the Merger);
(c) obtain all necessary actions or non-actions, waivers, consents, approvals, Orders and authorizations from Governmental Entities, seek the expiration or termination of all applicable waiting periods under applicable legal requirements, and make all necessary registrations, declarations and filings with Governmental Authorities;
(d) execute or deliver any proceedingadditional instruments reasonably necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement; and
(e) received by take all action reasonably necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any of the transactions contemplated hereby and, if any such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending state takeover statute or threatened litigation regarding similar statute or regulation becomes applicable to this Agreement or any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, take all action reasonably necessary to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood ensure that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize or if any suit is instituted by any Governmental Entity eliminate the effect of such statute or any private party challenging any of regulation on this Agreement and the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereby.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby Merger and the other Transactions as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or otherwise providing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizationsapprovals, approvals and permits contemplated by this Agreementpermits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other Transactions and (iiiii) taking the reasonable all steps as may be necessary or advisable necessary, subject to make all necessary filings and the limitations in this Section 6.7, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersregistrations, registrationspermits, authorizations, approvals orders and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)approvals.
(b) To In connection with and without limiting the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Companyparties shall give any required notices to third parties, Parent and Merger Sub shalleach of the parties shall use, in connection with the efforts referenced above and cause each of their respective Subsidiaries and Affiliates to obtain all requisite approvalsuse, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each obtain any third-party consents that are necessary, proper or advisable to consummate the Merger. Each of the parties will furnish to the other party such necessary information and reasonable assistance as the other may request in connection with the preparation of any filing required filings or submission and in connection submissions with any investigation or other inquiryGovernmental Entity and will cooperate in responding to any inquiry from a Governmental Entity, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform informing the other parties of such inquiry, consulting in advance before making any communication (including the initiation presentations or submissions to a Governmental Entity, and supplying each other with copies of any proceeding) received by such all material correspondence, filings or communications between either party from and any Governmental Entity with respect to this Agreement. To the extent reasonably practicable, the parties and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, their Representatives shall have the right to review in advance, subject to applicable Laws relating to advance and each of the exchange of informationparties will consult the others on, all of the information relating to such party, the other and any each of its respective Subsidiaries, which their Affiliates that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with the Merger and the other Transactions, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties shall, nor shall they permit their respective Representatives to, participate independently in any proceeding by meeting or engage in any private party, substantive conversation with any Governmental Entity in respect of any filing, investigation or other Person and (v) inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by such Governmental Entity or other Personapplicable Law, give without giving the other parties the opportunity to attend and or participate (whether by telephone or in person) in any such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18meeting with such Governmental Entity.
(c) If In connection with obtaining any objections are asserted approval or consent from any Person with respect to the transactions contemplated hereby under Merger, neither the Company nor any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any Subsidiary of the transactions contemplated hereby as violative of Company shall pay or commit to pay to any applicable LawPerson whose approval or consent is being solicited any cash or other consideration, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of make any Transaction Litigation, use its reasonable best efforts to resolve accommodation or commitment or incur any such objections liability or challenges as such Governmental Entity or private party may have other obligation to such transactions under Person without the prior written consent of Parent. The parties shall cooperate to obtain such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)consents.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub parties hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fifteen (15) days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, the all other actions and to do, or to cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the Merger and the other transactions contemplated hereby hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event no later than the Outside DateEnd Date (as hereinafter defined)), including (iiv) using reasonable best efforts subject to take, or cause to be taken, applicable legal limitations and the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction instructions of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with keep each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to the completion of the transactions contemplated hereby and by this Agreement including, to the extent permitted by Law, promptly inform furnishing the other parties with true and complete copies of notices or other communications sent or received by the Company or Parent, as the case may be, or any of their Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed communication (including the initiation of any proceeding) received by such party from to any supervisory or Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) give the other reasonable notice of, and, to the extent permitted by such Governmental Entity or other PersonEntity, give allow the other parties the opportunity to attend and participate at any meeting with any Governmental Entity in such meetingsrespect of any filings, conferencesinvestigation or other inquiry or proceeding relating thereto. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, conference callsand consider in good faith the views of the other party in connection with, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply any proposed written communication to any Transaction Litigation, which is the subject of Section 6.18Governmental Entity.
(c) If any objections are asserted with respect Subject to the transactions contemplated hereby under any applicable Law or rights of Parent in Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any suit administrative or judicial action or proceeding, including any proceeding by a private party, is instituted by any Governmental Entity (or threatened to be instituted) challenging the Merger or any private party challenging any of the transactions other transaction contemplated hereby as violative of any applicable Lawby this Agreement, each of the Company, Company and Parent shall cooperate in all respects with each other and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, shall use its their respective reasonable best efforts to resolve contest and resist any such objections action or challenges as such Governmental Entity proceeding and to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law so as to permit overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated hereby on hereby. Notwithstanding the terms set forth foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) so long as soon as reasonably practicable after the date such party has, prior to such termination, complied with its obligations under this Section 5.6.
(d) For purposes of this Agreement Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) the Xxxxxxx Act of 1890, the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and in all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any event no later than Law governing the Outside Date)direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Samples: Merger Agreement (Venoco, Inc.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, the actions all action and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, orders, registrations, authorizations, approvals and permits contemplated by this Agreementif any), and (iii) the taking the of all reasonable steps as may be necessary to obtain an approval or advisable waiver from, or to make avoid an action or proceeding by, any Governmental Authorities, (ii) the obtaining of all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits or waivers from Third Parties (including providing Seller obtaining all of the consents listed on Schedule 5.2(d) hereof) and (iii) the 42 execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement. In furtherance of the foregoing, Purchaser and Seller each shall furnish to the other such necessary information and documentary material and providing personnel reasonable assistance as necessary the other may request in connection with obtaining any consents required to attend any regulatory meetings, hearings or other proceedings)be obtained by it hereunder.
(b) In the event that any and all consents, approvals or waivers necessary for the assignment, assumption or transfer of any Purchased Contract, Purchased Intellectual Property, or Assumed Liability or issuance of the Shares or any claim, right or benefit arising thereunder or resulting therefrom, shall not have been obtained prior to the Closing Date, then as of the Closing, this Agreement and the Ancillary Agreements, to the extent permitted by Law, shall constitute a full and equitable assignment by Seller to Purchaser and assumption by Purchaser of all of Seller's right, title and interest in and to, and all of Seller's obligations and liabilities under, such Purchased Contract, Purchased Intellectual Property, or Assumed Liability. In the case of Purchased Contracts, Purchaser shall be deemed Seller's agent for purpose of completing, fulfilling and discharging all of Seller's Liabilities under any such Contract. Subject to Section 5.2(a), the parties shall take all reasonable, lawful and necessary steps and actions to provide Purchaser with the benefits of such Purchased Contracts and Purchased Intellectual Property, and, in the case of Contracts and Assumed Liabilities, to relieve Seller of the performance, liability and other obligations thereunder, including entry into subcontracts for the performance of Contracts.
(c) In the event that Seller shall be unable to make the equitable assignment and assumption described in Section 5.2(b), or if such attempted assignment would give rise to any right of termination, or would otherwise adversely affect the rights of Seller or Purchaser under such Purchased Contract, Purchased Intellectual Property or Assumed Liability or would not assign all of Seller's rights, liabilities and obligations thereunder at the Closing, each party shall continue to cooperate with the other and, subject to Section 5.2(a), use all reasonable best efforts to provide the other party with all intended rights, liabilities and obligations. To the extent permissible under applicable Law that any such consents and waivers are not obtained, or any rule, regulation or restriction of any Governmental Entityuntil the impediments to such assignment are resolved, each of the Company, Parent and Merger Sub party shall, in connection with the efforts referenced above subject to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebySection 5.2(a), use its all reasonable best efforts to (i) cooperate in all respects with each other party in connection with provide to Purchaser, at the request of Purchaser, the benefits of any filing such Purchased Contract or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private partyPurchased Intellectual Property, (ii) keep provide to Seller, at the other parties apprised request of Seller, the relief of the status of matters relating to completion of the transactions contemplated hereby performance, liability and promptly inform the other parties of obligations thereunder and under any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated herebyAssumed Liability, (iii) permit cooperate in any reasonable and lawful arrangement designed to provide such benefits to either party, and (iv) enforce, at the request of and for the account of the other partiesparty, any rights, or the relief, of such other parties’ legal counselparty arising from any such Purchased Contract, to review Purchased Intellectual Property or Assumed Liability against any filingthird Person, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have including the right to review elect to terminate a Contract in advanceaccordance with the terms thereof upon the advice of such other Party. To the extent that Purchaser is provided the benefits of any Purchased Contract or Purchased Intellectual Property referred to herein (whether from Seller or otherwise), subject to applicable Laws relating Purchaser shall perform the obligations of Seller thereunder or in connection therewith.
(d) Notwithstanding anything to the exchange of informationcontrary in this Agreement, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth nothing in this Section 6.5(b5.2 shall require Seller or Purchaser to expend any sum (other than an immaterial sum), make a financial commitment (other than an immaterial financial commitment) shall not apply or grant or agree to any Transaction Litigation, which is the subject of Section 6.18.
concession (cother than an immaterial concession) If to any objections are asserted with respect Third Party or Governmental Authority to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve obtain any such objections consent, approval or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)waiver.
Appears in 1 contract
Samples: Purchase Agreement (Hei Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreementherein provided for, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its commercially reasonable best efforts to take, or cause to be taken, the actions all appropriate action, and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement; provided, and however, that nothing in -------- ------- this Agreement (iiiother than as expressly provided for in Section 1.01) taking shall obligate Parent or Purchaser to keep the reasonable steps Offer open beyond the expiration date set forth in the Offer (as it may be necessary or advisable extended from time to make all necessary filings and obtain all such consentstime). Without limiting the foregoing, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(bi) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shallPurchaser shall use its commercially reasonable efforts to make promptly any required submissions under the HSR Act which the Company or Parent determines should be made, in connection each case, with respect to the efforts referenced above to obtain all requisite approvalsOffer, clearances the Merger, this Agreement or the Shareholder Option Agreement and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and thereby and (ii) Parent, Purchaser and the Company shall cooperate with one another (A) in promptly inform the determining whether any filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other federal, state or foreign law or regulation or whether any consents, approvals or waivers are required to be or should be obtained from other parties of any communication (including to loan agreements or other contracts or instruments material to the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, Company's business in connection with any pending or threatened litigation regarding any the consummation of the transactions contemplated herebyby this Agreement and (B) in promptly making any such filings, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, furnishing information required in connection with therewith and seeking to obtain timely any pending such consents, permits, authorizations, approvals or threatened litigation by waivers. In case at any private partytime after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, with any other Person the proper officers and to receive final versions directors of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement shall take all such necessary action.
(b) In the event that any action, suit, proceeding or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion investigation relating hereto or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity transactions contemplated hereby is commenced, whether before or other Person, give after the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoingEffective Time, the obligations set forth in this Section 6.5(b) shall not apply parties hereto agree to any Transaction Litigation, which is the subject of Section 6.18cooperate and use their commercially reasonable efforts to defend vigorously against it and respond thereto.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth Nothing in this Agreement as soon as reasonably practicable after the date shall obligate Parent, Purchaser or any of this Agreement their respective Subsidiaries or affiliates to agree (and i) to limit in any event no later than manner whatsoever or not to exercise any rights of ownership of any securities (including the Outside DateShares), or to divest, dispose of or hold separate any securities or all or a material portion of their respective businesses, assets or properties or of the business, assets or properties of the Company or any of its Subsidiaries or (ii) to limit in any material manner whatsoever the ability of such entities (A) to conduct their respective businesses or own such assets or properties or to conduct the businesses or own the properties or assets of the Company and its Subsidiaries or (B) to control their respective businesses or operations or the businesses or operations of the Company and its Subsidiaries.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject From and after the date hereof and prior to the terms and conditions earlier of this Agreementthe Closing or the Termination Date, each party shall, and shall cause each of the Companyits controlled Affiliates to, Parent and Merger Sub shall use its reasonable best efforts to take, as promptly as reasonably practicable, or cause to be taken, the actions as promptly as reasonably practicable, all actions, and to do, as promptly as reasonably practicable, or cause to be done, as promptly as reasonably practicable, and to reasonably assist and reasonably cooperate with the other parties in doing, all things necessary, proper or advisable on its part under this Agreement to consummate and applicable Laws make effective the transactions contemplated hereby, including preparing and regulations filing all documentation to effect all notices, reports, and other filings and to obtain all consents, approvals, registrations, authorizations, waivers, Permits, and Orders necessary to be obtained from any third party (including any Governmental Authority) in order to consummate the transactions contemplated hereby as soon as reasonably practicable after hereby. Without limiting the date applicability of this Agreement (the foregoing, controlling Affiliates of Parent shall, and in any event no later than the Outside Date)shall cause their controlled Affiliates to, including (i) using use reasonable best efforts to takecomply promptly with any inquiries or requests for information from Governmental Authorities in connection with obtaining the Required Approvals.
(b) Without limiting the generality of Section 5.08(a), each party shall, as promptly as reasonably practicable following the execution of this Agreement, file, make, or otherwise cause to be takenfiled or made, and assist the actions necessary to cause the conditions to Closing set forth other party in Article VII filing, making or otherwise causing to be satisfiedfiled or made (i) the notification and report form required under the HSR Act or any Foreign Antitrust Law, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings notifications and other documents and filings required in order to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreementthe Required Approvals, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary other pre-Closing applications, notifications, filings requests for consent, and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary other information and documentary material and providing personnel as necessary forms required to attend any regulatory meetings, hearings be filed or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of made with any Governmental EntityAuthority in connection with the transactions contemplated hereby. Prior to Closing, each of the Company, Parent and Merger Sub no party shall, in connection with the transactions contemplated by this Agreement, file or submit any application with or request for non-disapproval by any Governmental Authority with respect to any inter-affiliate agreement or transaction between TWG Re, any Parent Insurance Subsidiary or any Company Insurance Subsidiary, on the one hand, and Parent, TWG Re or any of Parent’s Subsidiaries, on the other hand, that would require approval or non-disapproval under applicable Law. Each party shall, subject to Section 5.08(e), use their reasonable best efforts referenced above to obtain early termination of any applicable waiting period, to the extent required, from the applicable Governmental Authorities. All filing fees payable in connection with any of the foregoing shall be borne equally by Parent and the Company.
(c) Without limiting the generality of Section 5.08(a), each party shall, and shall cause each of its controlled Affiliates to, subject to Section 5.08(e), use reasonable best efforts to take or cause to be taken all requisite approvalsactions reasonably necessary, clearances including to comply promptly with any inquiries or requests for information from Governmental Authorities, to obtain the Required Approvals, and authorizations for each other clearance, waiver, approval, or authorization required under applicable Laws from any Governmental Authority, in each case in order to promptly consummate the transactions contemplated hereby.
(d) Each party shall, and shall cause each of its controlled Affiliates to, subject to applicable Laws, (i) promptly notify the other parties of any material communication to that party or any such Affiliate of such party from any Governmental Authority (including the United States Federal Trade Commission and the United States Antitrust Division of the Department of Justice) whose consent, approval, authorization or waiver, or any filing with, is required for the consummation of the transactions contemplated hereby and permit the other parties to review in advance any material proposed written communication or response to any such Governmental Authority, (ii) not agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation, or other inquiry with respect to this Agreement and the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate thereat, in each case, to the extent practicable, (iii) furnish the other parties with copies of all written correspondence, filings, and communications (and memoranda setting forth the substance thereof) between it and its 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 contemplated hereby, and (iv) furnish the other parties with such information, assistance and cooperation as the other parties may reasonably request in connection with their preparation of necessary filings, registrations, or submissions of information to any Governmental Authority in connection with this Agreement and the transactions contemplated hereby.
(e) Without limiting the foregoing, each party shall, and shall cause each of its controlled Affiliates to, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiryresolve such objections, including any proceeding initiated by any private partyif any, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are as may be asserted with respect to the transactions contemplated hereby under the HSR Act, any applicable Foreign Antitrust Law or if any suit is instituted by any Governmental Entity Authority, which reasonable best effort shall include an obligation to contest or resist (including through any private party applicable appeals process) any Action which may be instituted challenging any of the transactions contemplated hereby as violative of and to seek to have vacated, lifted, reversed, or overturned any applicable Lawdecree, each of the Companyjudgment, Parent injunction, or other Order, whether temporary, preliminary or permanent, that is in effect and Merger Sub shallthat prohibits, subject to Section 6.18 in the event of any Transaction Litigationprevents, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit restricts consummation of the transactions contemplated hereby on hereby; provided, that the terms set forth parties hereto understand and agree that reasonable best efforts of any party and its Affiliates shall not be deemed to include litigating or initiating any claim against a Governmental Authority. Notwithstanding anything in this Agreement as soon as reasonably practicable after to the date of this Agreement (and in any event contrary, no later than the Outside Date).party shall be obligated to take or refrain from taking, or agree to take or refrain from taking or agree to cause its controlled
Appears in 1 contract
Samples: Merger Agreement (Assurant Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, and assist and cooperate with the other in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Applicable Law to consummate and make effective the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documents documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as practicable (ii) obtaining and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this AgreementAgreement (whether or not such approvals, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits (including providing all necessary information and documentary material and providing personnel as necessary other confirmations are conditions to attend any regulatory meetings, hearings or other proceedingsthe consummation of the Merger pursuant to Article 9).
(b) To In furtherance and not in limitation of the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entityforegoing, each of the Company, Parent and Merger Sub shallthe Company shall make, and not withdraw, as promptly as practicable and in any event within 30 Business Days (or, in connection the case of the succeeding clauses (iii) and (iv), 60 days) of the date hereof, (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with the efforts referenced above respect to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, (ii) all necessary filings to obtain consents from the FCC (including FCC Forms 394 or other appropriate forms) that are required in connection with the Merger, (iii) all necessary filings to obtain consents from the state regulators and the Franchise authorities that are required in connection with the Merger and (iv) all other registrations, declarations, notices and filings with Governmental Authorities that are required in connection with the Merger. Each of the Company and Parent shall use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with supply as promptly as practicable any filing or submission additional information and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating documentary material that may be requested pursuant to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as practicable.
(c) Parent shall take the lead in (i) the scheduling of, and strategic planning for, any meeting with any Governmental Authority under the HSR Act or any other applicable Competition Law, (ii) the making of any filings, including the initial filings under the HSR Act, (iii) the process for the receipt of any necessary approvals and (iv) the resolution of any investigation or other inquiry of any such objections Governmental Authority. Without limiting the foregoing sentence, except as prohibited by Applicable Law, each of Parent and the Company shall, (A) to the extent reasonably practicable, consult with each other prior to taking any material substantive position with respect to the filings under the HSR Act or challenges as any other Competition Law in discussions with or filings to be submitted to any Governmental Authority, (B) to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act or any other Competition Law, and (C) to the extent reasonably practicable, coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such party with any Governmental Entity Authority relating to this Agreement or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on under the terms set forth HSR Act or any other Competition Law.
(d) Unless prohibited by Applicable Law or by the applicable Governmental Authority, each of the Company and Parent shall (i) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 8.01(a)) without the other ( provided that, subject to Section 8.01(c), either party may participate in or attend any such non-substantive meeting), (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one party is prohibited by Applicable Law or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto; provided that, Parent or its representatives may conduct such a meeting or conversation without the Company or its representatives present upon the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything in this Agreement as soon as reasonably practicable after to the date contrary, the parties hereto understand and agree that “ reasonable best efforts ” shall not require Parent to (i) divest or otherwise hold separate (including by establishing a trust or otherwise) any businesses, assets or properties of this Agreement (and in Parent or any event no later than of its Subsidiaries or any businesses, assets or properties of the Outside Date).Company or any of its Subsidiaries,
Appears in 1 contract
Samples: Merger Agreement
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, and to assist and cooperate with each of the other Parties to this Agreement in doing, all things necessary, proper or advisable under applicable Law to consummate and make effective the Amalgamation and the other transactions contemplated by this Agreement and applicable Laws the Amalgamation Agreement, as promptly as practicable, including (but in all events subject to the exceptions herein): (i) defending Actions challenging this Agreement, the resolutions of the board of directors of the Company or the Company Shareholder Meeting with respect to the consummation of the Amalgamation or any of the other transactions contemplated by this Agreement, including seeking to have any such stay or temporary restraining order or injunction vacated and regulations reversed; (ii) taking all reasonable actions necessary to cause the conditions precedent in Article VIII to be satisfied; (iii) taking all reasonable actions necessary to obtain all necessary consents, approvals, written permissions, confirmations and waivers from third parties, including any Governmental Authority; and (iv) executing and delivering any additional instruments reasonably necessary to consummate the transactions contemplated hereby by this Agreement. In furtherance and not in limitation of the foregoing, each Party agrees to make or cause to be made all filings that are advisable or required by applicable Law of The Netherlands, the European Union, the United States or such other Laws with respect to the transactions contemplated hereby, with the objective of obtaining the consents set forth in Section 3.08(a). Each Party agrees to make or cause to be made such filings as soon promptly as reasonably practicable after the date of this Agreement (practicable, and in any event no later than within the Outside Date)time frame provided in Section 6.03(a) of the Company Disclosure Schedule, including (i) using to supply as promptly as practicable any additional information and documentary material that may be requested by Governmental Authorities pursuant to any applicable Law, and to use its reasonable best efforts to take, or cause to be taken, the all other actions consistent with and subject to this Section 6.03 necessary to cause the expiration or termination of the applicable waiting periods, and grant of any necessary approvals, consistent with the consents set forth in Section 3.08(a) and the conditions to Closing set forth in Article VII VIII. Without limiting the foregoing, each of the Parties shall request and shall use its reasonable best efforts to be satisfiedobtain early termination of the waiting period provided for under the HSR Act. In addition, (ii) preparing and filing as promptly as practicable all documents to effect all the Parties shall make necessary applications, notices, petitions, filings and other documents and use reasonable best efforts to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits completion of a review of the transactions contemplated by this Agreement, and Agreement by the Committee on Foreign Investment in the United States (iii"CFIUS") taking pursuant to Section 721 of the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits Defense Production Act of 1950 (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings"Exon-Xxxxxx Review").
(b) To the extent permissible under applicable Law or any rule, regulation or restriction Each of any Governmental Entity, each of the Company, Parent and Merger Sub the Company shall, in connection with the efforts referenced above in Section 6.03(a) to obtain all requisite approvals, clearances approvals and authorizations for the transactions contemplated herebyby this Agreement, use its reasonable best efforts to (i) cooperate to prosecute each application for approval with reasonable diligence and otherwise use its reasonable best efforts to obtain the grants of the applications as expeditiously as practicable, including the exercise of reasonable diligence to comply with any request from a Governmental Authority for additional documents, information or materials; (ii) cooperate in all respects with each the other party Party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any a private party, ; (iiiii) keep notify the other parties apprised of the status of matters relating Party promptly following any communication received by such Party from, or given by such Party to completion of the transactions contemplated hereby any Governmental Authority, and promptly inform the other parties of any communication (including the initiation of received or given in connection with any proceeding) received proceeding by such a private party from any Governmental Entity and any material communication received from any private partyand, in each case, provide the other Party with a copy of any written communication promptly after the receipt thereof; and (iv) oppose any petitions to deny or other objections filed with respect to the applications for any FCC approval, including any administrative or judicial review and any requests for reconsideration or review of any FCC approval, in connection with any pending or threatened litigation each case regarding any of the transactions contemplated hereby. In connection with the foregoing, (iii) permit Parent and the Company shall furnish to each other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, such information as they each shall reasonably request in connection with any pending or threatened litigation by any private party, the prosecution of applications and other legal proceedings in connection with any other Person this transaction. Parent and to receive final versions of the same (it being understood that Company each party shall, without limitation, shall have the right to review in advance, subject and to applicable Laws the extent practicable each will consult the other on, all information relating to the exchange of informationother Party, all of the information relating to such party, and any of its respective Subsidiaries, which appears that may appear in any filing made with, or written materials submitted to, any Government Authority or third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding this Agreement and the transactions contemplated hereunder. Each of the Company and Parent shall take or cause to be taken all actions necessary, appropriate or desirable to be taken by any private party, with any other Person the Company and Parent (vand their respective Affiliates) to permit the extent permitted by such Governmental Entity FCC to approve the FCC transfer or other Personassignment application within the time frame contemplated in Section 9.02(a), give except that neither the other parties Parent, and its Affiliates, nor the opportunity Company, and its Affiliates, shall be required to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply take any action that would be reasonably likely to any Transaction Litigation, which is the subject of Section 6.18have a Company Material Adverse Effect or have a Modified Parent Material Adverse Effect.
(c) If any In furtherance and not in limitation of the covenants of the Parties contained in Sections 6.03(a) and 6.03(b), each of Parent and the Company shall use its reasonable best efforts to resolve such objections are if any, as may be asserted by a Governmental Authority with respect to the transactions contemplated hereby under in connection with any applicable Law or Required Approvals. In connection with the foregoing, if any suit administrative or judicial action or proceeding, including any proceeding by a private party, is instituted by any Governmental Entity (or any private party threatened to be instituted) challenging any of the transactions transaction contemplated hereby by this Agreement as violative of any applicable Law, each of the CompanyParties shall cooperate in all respects with the other Parties and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.03 or any other provision in this Agreement shall (i) limit a Party's right to terminate this Agreement pursuant to Section 9.02(a) or (c) so long as such Party has theretofore complied in all material respects with its obligations under this Section 6.03, or (ii) require Parent to agree to (A) any conditions that would require the sale of one or more satellites of Parent and Merger Sub shallits Subsidiaries in operation or authorized as of the date hereof and set forth in Section 6.03(c) of the Parent Disclosure Schedule, subject or Company Satellites, or impose any other requirement that would materially diminish the usefulness of any such satellites or the right to Section 6.18 replace or renew the rights to operate any such satellites or (B) any conditions that impose other limitations on Parent's ownership or operation of any portion of the Company's or any of its Subsidiaries' business or assets, or (C) any other obligation, restriction, limitation, qualification or other conditions that, in the event case of clauses (B) and (C), would be expected to have a Company Material Adverse Effect or a Modified Parent Material Adverse Effect, or (iii) require the Company to agree to any Transaction Litigationdispositions, limitations, consents, commitments, agreements or other material actions, other than any disposition, limitation, consent, commitment agreement or other action that in each such case may be conditioned upon the consummation of the transactions contemplated by this Agreement.
(d) For the avoidance of doubt, the covenants of the Parties contained in Sections 6.03(a) and 6.03(b) shall apply, without limitation, to notifications, filings, agreements, or approvals required to be made with, entered into, or obtained from the Department of State (Directorate of Defense Trade Controls, Bureau of Political-Military Affairs) and the U.S. federal executive branch agencies with responsibility for law enforcement or homeland security.
(e) Parent shall be responsible for preparing and filing or causing to be prepared and filed all Tax Returns on behalf of the Company and its Subsidiaries that are due after the Closing Date. On or after the Closing Date, the Company shall provide or cause to be provided to Parent all records and information that are relevant to any such Tax Returns, or to any audit, litigation or other proceedings with respect to events or transactions prior to Closing. In particular, without limitation, the Company shall (i) in cooperation with Parent, to the extent possible without triggering tax liabilities, use its reasonable best efforts to resolve any liquidate the intermediate companies between the Company and NS B.V. and to repay intercompany debt among such objections or challenges as companies and/or NS B.V., and (ii) in cooperation with Parent, develop a plan to complete, after Closing, such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation steps in the liquidation of the transactions contemplated hereby on intermediate companies or repayment of intercompany debt which cannot be completed prior to Closing without triggering tax liabilities.
(f) During the terms set forth in this Agreement as soon as reasonably practicable after period from the date hereof to the Closing Date, the Company shall use reasonable best efforts to (i) establish procedures to facilitate timely financial reporting in accordance with International Financial Reporting Standards and (ii) review the fair value of this Agreement significant assets and liabilities of the Company and its Subsidiaries (including contingent assets and in any event no later than the Outside Datecontingent liabilities), and to revalue them where appropriate.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Amalgamation (New Skies Satellites Holdings Ltd.)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the CompanyParties shall, Parent and Merger Sub shall cause their respective Subsidiaries to, use its their respective reasonable best efforts to take, or cause to be taken, the actions in good faith, all actions, and to do, or cause to be done, the all things necessary, proper or desirable, or advisable under applicable Laws, so as to cause and enable the transactions contemplated hereby and by the Ancillary Agreements to be consummated as promptly as practicable, and shall cooperate fully with, and furnish information to, the other Parties to that end. The Parties shall cooperate and use their respective reasonable best efforts to execute any additional documents necessary to confirm or carry out the provisions of this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement and the Ancillary Agreements.
(b) In connection with and in any event no later than without limiting the Outside Date)generality of the foregoing, including (i) using reasonable best efforts to takeeach Party shall provide, or cause to be takenprovided, the actions all necessary to cause the conditions to Closing set forth in Article VII notices and information to, and enter into discussions with, any third party (other than any Governmental Authority) from whom any Consent is required to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, obtained in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for Share Sale or the other transactions contemplated hereby, by this Agreement and the Ancillary Agreements and to use its reasonable best efforts to (i) cooperate in obtain all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep such Consents. Each Party shall use reasonable best efforts to obtain the other parties apprised consent of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party to a Contract that would otherwise be breached by any covenant, representation or warranty or any Governmental Entity, with respect to other obligation of this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18Agreement.
(c) If Except as expressly contemplated, permitted or required by this Agreement, from the date hereof until the Closing, the Parties shall not, and shall not permit any objections are asserted with respect of their respective Subsidiaries to, without the prior written consent of Parent (in the case of Purchaser) or Purchaser (in the case of the Sellers) take, or omit to the transactions contemplated hereby under take, any applicable Law or if any suit action that is instituted by any Governmental Entity or any private party challenging reasonably likely to result in any of the transactions contemplated hereby as violative of any applicable Law, each of conditions to the Company, Parent and Merger Sub shall, subject Parties’ respective obligations to Section 6.18 in consummate the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms Share Sale set forth in this Agreement as soon as reasonably practicable after Article VII, including the date receipt of this Agreement (and in the Requisite Regulatory Approvals, not being satisfied on a timely basis or for any event no later than other reason the Outside Date)Share Sale not being consummated on a timely basis.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, the actions all action and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, orders, registrations, authorizations, approvals and permits contemplated by this Agreementif any), and (iii) the taking the of all reasonable steps as may be necessary to obtain an approval or advisable waiver from, or to make avoid an action or proceeding by, any Governmental Authorities, (ii) the obtaining of all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits or waivers from Third Parties (including providing Seller obtaining all of the consents listed on Schedule 5.2(d) hereof) and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement. In furtherance of the foregoing, Purchaser and Seller each shall furnish to the other such necessary information and documentary material and providing personnel reasonable assistance as necessary the other may request in connection with obtaining any consents required to attend any regulatory meetings, hearings or other proceedings)be obtained by it hereunder.
(b) In the event that any and all consents, approvals or waivers necessary for the assignment, assumption or transfer of any Purchased Contract, Purchased Intellectual Property, or Assumed Liability or issuance of the Shares or any claim, right or benefit arising thereunder or resulting therefrom, shall not have been obtained prior to the Closing Date, then as of the Closing, this Agreement and the Ancillary Agreements, to the extent permitted by Law, shall constitute a full and equitable assignment by Seller to Purchaser and assumption by Purchaser of all of Seller’s right, title and interest in and to, and all of Seller’s obligations and liabilities under, such Purchased Contract, Purchased Intellectual Property, or Assumed Liability. In the case of Purchased Contracts, Purchaser shall be deemed Seller’s agent for purpose of completing, fulfilling and discharging all of Seller’s Liabilities under any such Contract. Subject to Section 5.2(a), the parties shall take all reasonable, lawful and necessary steps and actions to provide Purchaser with the benefits of such Purchased Contracts and Purchased Intellectual Property, and, in the case of Contracts and Assumed Liabilities, to relieve Seller of the performance, liability and other obligations thereunder, including entry into subcontracts for the performance of Contracts.
(c) In the event that Seller shall be unable to make the equitable assignment and assumption described in Section 5.2(b), or if such attempted assignment would give rise to any right of termination, or would otherwise adversely affect the rights of Seller or Purchaser under such Purchased Contract, Purchased Intellectual Property or Assumed Liability or would not assign all of Seller’s rights, liabilities and obligations thereunder at the Closing, each party shall continue to cooperate with the other and, subject to Section 5.2(a), use all reasonable best efforts to provide the other party with all intended rights, liabilities and obligations. To the extent permissible under applicable Law that any such consents and waivers are not obtained, or any rule, regulation or restriction of any Governmental Entityuntil the impediments to such assignment are resolved, each of the Company, Parent and Merger Sub party shall, in connection with the efforts referenced above subject to obtain all requisite approvals, clearances and authorizations for the transactions contemplated herebySection 5.2(a), use its all reasonable best efforts to (i) cooperate in all respects with each other party in connection with provide to Purchaser, at the request of Purchaser, the benefits of any filing such Purchased Contract or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private partyPurchased Intellectual Property, (ii) keep provide to Seller, at the other parties apprised request of Seller, the relief of the status of matters relating to completion of the transactions contemplated hereby performance, liability and promptly inform the other parties of obligations thereunder and under any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated herebyAssumed Liability, (iii) permit cooperate in any reasonable and lawful arrangement designed to provide such benefits to either party, and (iv) enforce, at the request of and for the account of the other partiesparty, any rights, or the relief, of such other parties’ legal counselparty arising from any such Purchased Contract, to review Purchased Intellectual Property or Assumed Liability against any filingthird Person, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have including the right to review elect to terminate a Contract in advanceaccordance with the terms thereof upon the advice of such other Party. To the extent that Purchaser is provided the benefits of any Purchased Contract or Purchased Intellectual Property referred to herein (whether from Seller or otherwise), subject to applicable Laws relating Purchaser shall perform the obligations of Seller thereunder or in connection therewith.
(d) Notwithstanding anything to the exchange of informationcontrary in this Agreement, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth nothing in this Section 6.5(b5.2 shall require Seller or Purchaser to expend any sum (other than an immaterial sum), make a financial commitment (other than an immaterial financial commitment) shall not apply or grant or agree to any Transaction Litigation, which is the subject of Section 6.18.
concession (cother than an immaterial concession) If to any objections are asserted with respect Third Party or Governmental Authority to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve obtain any such objections consent, approval or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)waiver.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent parties hereto shall cooperate with the other parties and Merger Sub use (and shall use its cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, the actions all actions, and to do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under this Agreement to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and applicable Laws to consummate and regulations make effective, as promptly as reasonably practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the transactions contemplated hereby Transactions, (iii) execute and deliver any additional instruments necessary, proper or advisable to consummate the Transactions and (iv) defend or contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Laws or CFIUS Approval, which are dealt with in Section 5.5(b), Section 5.5(c) and Section 5.5(d) below; provided, however, that no party hereto shall be obligated to pay any material amount as soon consideration therefor to, or make any material financial or other accommodation in favor of, any third party (other than a Governmental Authority) from whom any such approval, consent, registration, waiver, permit, authorization, order or other confirmation is sought, other than customary processing fees (and the Company shall not make or agree to pay any such amount or make any such accommodation in favor of any such third party without the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned)); and provided further, that obtaining any such approval, consent, registration, waiver, permit, authorization, order or other confirmation from any Governmental Authority or third party, and the making of any such payment or financial or other accommodation, shall not be a condition to Closing unless and to the extent expressly provided in Section 6.1(b). For purposes hereof, “Antitrust Laws” shall mean the Xxxxxxx Act, the Xxxxxxx Act, the HSR Act, the Federal Trade Commission Act, all applicable Foreign Antitrust Laws and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
(b) Each of the parties shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) as promptly as reasonably practicable following the date of this Agreement, and in any event within ten (10) Business Days following the date hereof, provided that in the event the Federal Trade Commission (the “FTC”) or Antitrust Division of the Department of Justice (the “DOJ”) is closed or not accepting such filings under the HSR Act (a “Governmental Closure”), such day shall be extended day-for-day, for each Business Day the Governmental Closure is in effect. Parent shall submit a briefing note to the CMA with respect to the Transactions (the “CMA Briefing Note”) as promptly as reasonably practicable after the date of this Agreement Agreement, and in any event within ten (10) Business Days following the date hereof. If requested by the CMA or otherwise agreed between Parent and the Company acting in good faith, Parent shall submit a merger notice to the CMA as promptly as reasonably practicable (and in any event no later than shall submit a draft merger notice to the Outside CMA within ten (10) Business Days of the CMA’s request or of Parent and the Company agreeing to submit a merger notice, as applicable). Each of the parties hereto shall submit as promptly as reasonably practicable after the date of this Agreement, and in any event within ten (10) Business Days following the date hereof or as otherwise agreed in writing by Parent and the Company, a joint voluntary notice in draft form to CFIUS with respect to the Transactions and submit a final notice to CFIUS with respect to the Transactions as promptly as reasonably practicable after receiving comments to the draft joint voluntary notice from CFIUS. Each party hereto shall (x) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other Antitrust Law or by CFIUS and (y) subject to Section 5.5(c), promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all consents under any Laws that may be required by any non-U.S. or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable, and in any event prior to the End Date. Without limiting the foregoing but subject to Section 5.5(c), Parent shall promptly take all actions necessary to secure as soon as practicable the expiration or termination of any applicable waiting period under the HSR Act, obtain CMA Clearance and CFIUS Approval and all approvals and the expiration or termination of any applicable waiting period under any other Law and resolve any objections asserted with respect to the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit, restrict or delay the consummation of the Transactions (the “Regulatory Approvals”), including (i) using reasonable best efforts (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Parent and its Subsidiaries, (C) agreeing to takesell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Company and its Subsidiaries contemporaneously with or subsequent to the First Effective Time, (D) permitting the Company to sell, divest or otherwise convey or hold separate any of the particular assets or categories of assets or businesses of the Company or any of its Subsidiaries, (E) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (F) terminating any joint venture or other arrangement of the Company or Parent or their respective Subsidiaries, (G) creating any relationship, contractual right or obligation of the Company or Parent or their respective Subsidiaries, (H) agreeing to change or modify any course of conduct, or cause otherwise limit freedom of action, regarding the operations or governance of the Company or Parent or their respective Subsidiaries, (I) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, entering into agreements or stipulating to be takenthe entry of any judgment by, or filing appropriate applications with, the FTC, the DOJ, CFIUS or any other Governmental Authority in connection with any of the foregoing and, in the case of actions necessary by or with respect to cause the conditions Company, by consenting to Closing set forth such action by the Company (including any consents required under this Agreement with respect to such action)), and (J) taking any actions or making any behavioral commitments that may limit or modify the Company’s, Parent’s or their respective Subsidiaries’ rights of ownership in, or ability to conduct the business of, or with respect to one or more of their respective operations, divisions, businesses, product lines, specific products, categories of products, customers, specific assets or categories of assets (any such action or limitation described in Article VII to be satisfiedclauses (A) through (J), a “Restriction”) and (ii) preparing defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid entry of, or to have vacated or terminated, any Restraint that would prevent the Closing prior to the End Date. No actions taken pursuant to this Section 5.5 shall be considered for purposes of determining whether a Company Material Adverse Effect or Parent Material Adverse Effect has occurred or would reasonably be expected to occur. Subject to Section 5.5(c), Parent shall respond to and filing seek to resolve as promptly as reasonably practicable all documents to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated any objections asserted by this Agreement, and (iii) taking the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of Authority with respect to the Transactions. The Company, Parent and Merger Sub shallSubs and any of their respective Affiliates shall not take any action, including the acquisition of or agreement to acquire any business entity or assets (whether by merger, consolidation or other business combination, purchase of assets, purchase of shares, tender offer or exchange offer or similar transaction), with the intention to, or that would reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of approval of the DOJ or FTC as necessary, or to hinder or delay the expiration or termination of any waiting period or the obtaining of approvals under any other Antitrust Law. Nothing in this Section 5.5 shall require any party hereto (or permit the Company or any of its Subsidiaries without the prior written consent of Parent) to take, accept or agree to any Restriction unless the effectiveness of such Restriction is conditioned upon the Closing.
(c) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.5 shall (x) require any party hereto take, accept or agree to, (y) permit the Company or any of its Subsidiaries without the prior written consent of Parent to take, accept or agree to or (z) require Parent to consent to the Company or any of its Subsidiaries taking, accepting or agreeing to, any Restrictions if such Restrictions, individually or in the aggregate with all other actions undertaken with respect to the matters contemplated by this Section 5.5, would reasonably be expected to result in a material adverse effect on the business, operations, results of operations, assets, liabilities or condition (financial or otherwise) of Parent and its Subsidiaries (including, for purposes of this Section 5.5(c), the Company and its Subsidiaries), taken as a whole, following the Closing (the foregoing, a “Regulatory Material Adverse Effect”).
(d) Parent shall (after consulting with and considering in good faith the views of the Company) have the right to direct and control all matters in connection with obtaining any Regulatory Approvals with respect to the efforts referenced above Transactions in a manner consistent with its obligations under this Section 5.5, including in any Action initiated by any Person (including any Governmental Authority) seeking a Restraint. Subject to obtain all requisite approvalsthe foregoing, clearances and authorizations for each of the transactions contemplated hereby, parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other, including furnishing to the other party parties such necessary information and assistance as the other may reasonably request, in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by any a private partyPerson, (ii) promptly notify the other parties hereto of, and, if in writing, furnish the others with copies of (or, in the case of oral communications, advise the others of the contents of) any communication received from a Governmental Authority or any private Person whose consent is or may be required in connection with the Transactions (or who alleges as much) in connection with the Transactions and permit the other parties to review and discuss in advance (and to consider in good faith any comments made by the other parties in relation to) any proposed notifications, filing (except for HSR filings), submission or other written communication (and any analyses, memoranda, white papers, presentations, correspondence or other documents submitted therewith) made in connection with the Transactions to a Governmental Authority or any such other private Person, (iii) keep the other parties apprised of hereto reasonably informed with respect to the status of matters relating any such submissions and filings to completion any Governmental Authorities in connection with the Regulatory Approvals or the Transactions and any developments, meetings or discussions with any Governmental Authority in respect thereof, including with respect to (A) the receipt of any non-action, action, clearance, consent, approval or waiver, (B) the expiration of any waiting period, (C) the commencement or proposed or threatened commencement of any Action under applicable Laws and (D) the nature and status of any objections raised or proposed or threatened to be raised by a Governmental Authority or any other third party with respect to the Transactions, and (iv) not independently participate in any substantive meeting, hearing, proceeding or discussions (whether in person, by telephone or otherwise) with or before a Governmental Authority (including any member of any Governmental Authority’s staff) in respect of the transactions contemplated hereby and promptly inform Transactions (including any Regulatory Approvals, any related filing, investigation or inquiry in connection with the Transactions) without giving the other parties hereto or their counsel reasonable prior notice of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private partymeeting or discussions and, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonAuthority, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communicationsor participate. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable LawHowever, each of the Company, Parent and Merger Sub shallthe Company may (A) redact materials shared under this Section 5.5 as necessary (1) to comply with contractual arrangements, subject (2) remove references concerning valuation, (3) to Section 6.18 address good faith legal privilege or confidentiality concerns and (4) to comply with applicable Law and (B) designate any non-public information provided to any Governmental Authority as restricted to “Outside Counsel” only, in the event of any Transaction Litigation, use its reasonable best efforts to resolve which case any such objections information shall not be shared with employees, officers or challenges as such Governmental Entity directors or private party may have to such transactions under such applicable Law so as to permit consummation their equivalents of the transactions contemplated hereby on other parties hereto without approval of the terms set forth in this Agreement party hereto providing the non-public information. The parties hereto agree not to extend any waiting period under the HSR Act or enter into any agreement with any Governmental Authority to delay the consummation of, or otherwise not to consummate as soon as reasonably practicable after practicable, the date Transactions, except with the prior written consent of this Agreement the other parties hereto (and in any event no later than the Outside Datesuch consent not to be unreasonably withheld, delayed or conditioned).
Appears in 1 contract
Samples: Merger Agreement (GrubHub Inc.)
Reasonable Best Efforts. (a) The Company and Parent agree to make (or cause to be made) an appropriate filing of a Notification and Report Form pursuant to the HSR Act on the date of this Agreement or within one Business Day following the date hereof (pursuant to which Parent and the Company shall request early termination of the applicable waiting period under the HSR Act).
(b) Subject to the terms and conditions of this Agreement, each of the CompanyParent, Parent and Buyer, Merger Sub and the Company shall use its their reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to (i) consummate the transactions contemplated hereby and to cause the conditions set forth in Article VI to be satisfied as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than prior to the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, ; (ii) preparing and filing prepare as promptly as practicable all documents to effect all necessary applications, notices, petitionsfilings, filings requests and other documents to be made or filed by such Party (and cooperate with the other Parties with respect to any applications, notices, filings, requests and other documents to be made or filed by the other Parties) in connection with the transactions contemplated by this Agreement; and (iii) obtain as promptly as practicable all consents, approvals, clearances, waiverspermits, licenses, ordersauthorizations, registrations, authorizations, approvals and permits filings or notices from any Governmental Entity (or other Person) which is required to be obtained in connection with the transactions contemplated by this Agreement. For the avoidance of doubt, Parent and its Subsidiaries and the Company and the Company Subsidiaries shall not be required (iii) taking and without the reasonable steps as may be necessary prior consent of Parent, the Company and its Subsidiaries shall not), take any action with respect to any order or advisable any applicable Law or in order to make all necessary filings and obtain all such consentsany approval, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings consent or other proceedings)clearance which is not conditioned upon the consummation of the Merger.
(bc) To Subject to the extent permissible under applicable Law or any ruleother provisions of this Agreement, regulation or restriction of any Governmental Entityincluding those set forth elsewhere in this Section 5.3, each of the Company, Parent on the one hand, and Parent, Buyer and Merger Sub shallSub, in connection with on the efforts referenced above to obtain all requisite approvalsother hand, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to shall (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiryto the extent permitted by applicable Law, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Party in writing of any substantive communication (including the initiation of any proceedingoral and written) received by such party from from, or given by such Party to, any Governmental Entity with respect to any applications, notices, filings or requests made (or any consents, approvals or clearances sought to be obtained) in connection with the transaction contemplated by this Agreement (including keeping the other Parties apprised, on a current basis of the status thereof); (ii) to the extent permitted by applicable Law, promptly inform the other Party in writing of any substantive communication (oral and written) received by such Party from, or given by such Party to, any material communication received from any private party, in each case, Person that is not a Governmental Entity in connection with any pending Proceeding (or threatened litigation Proceeding) by such Person regarding any or arising out of this Agreement or the transactions contemplated hereby, by this Agreement; (iii) permit consult with the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same Parties (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws Law relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any private partyParty relating to any applications, notices, filings or requests made (or any consents, approvals or clearances sought to be obtained) in connection with the transaction contemplated by this Agreement; (iv) use reasonable best efforts to furnish to the other Party and, upon request, to any Governmental Entities such information and assistance as may be reasonably requested in connection with the foregoing, including by responding promptly to and using reasonable best efforts to comply fully with any other Person request for additional information or documents under any applicable Law; and (v) not independently participate in any meeting (including telephonic meetings) with any Governmental Entity in connection with the foregoing without giving the other Party sufficient prior notice of the meeting (including telephonic meetings) and, to the extent permitted by such Governmental Entity or other PersonEntity, give the other parties the opportunity to attend and and/or participate in such meeting (including telephonic meetings, conferences, conference calls, discussions and communications). Notwithstanding the foregoing, the obligations set forth anything in this Section 6.5(b5.3 to the contrary, materials provided by or on behalf of Parent or Buyer to the Company or its counsel or the Company to Parent or its counsel may be redacted to the extent necessary (a) shall not apply to any Transaction Litigationremove references concerning Parent’s, which is Buyer’s or the subject of Section 6.18.
(c) If any objections are asserted Company’s valuation analyses with respect to the transactions contemplated hereby under any applicable Law Company and the Company Subsidiaries, (b) as necessary to comply with Contracts in effect on the date hereof, (c) to address reasonable concerns regarding attorney-client privilege or if any suit is instituted by any Governmental Entity or any private party challenging any (d) to remove personal, proprietary and other confidential business information.
(d) Without limiting the generality of anything contained in this Section 5.3, the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, Company shall use its reasonable best efforts to resolve obtain any such objections consents or challenges as such approvals from any Persons (other than Governmental Entity Entities) that are necessary or private party may have to such transactions under such applicable Law so as to permit consummation of advisable in connection with the transactions contemplated hereby on by this Agreement. In the terms set forth event that the Company shall fail to obtain any such third-party consent, the Company shall use its reasonable best efforts, and shall take such actions as are reasonably requested by Parent and Buyer, to minimize any adverse effect upon the Company and the Company Subsidiaries resulting, or which would reasonably be expected to result, after the Effective Time, from the failure to obtain such consent. Notwithstanding anything to the contrary in this Agreement as soon as reasonably practicable after Agreement, in connection with obtaining any such approval or consent with respect to any transaction contemplated by this Agreement, (i) none of the date Company or any Company Subsidiary shall be required to, or, without the prior written consent of this Agreement Parent, shall, pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation due to such person and (and in ii) none of Parent, Buyer, Merger Sub or any event no later than the Outside Date)of their Affiliates shall be required to pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation.
Appears in 1 contract
Samples: Merger Agreement (Teleflex Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreementhereof, each of and except with regard to the Antitrust Laws which shall be governed by Section 6.7(c) and the Proxy Statement which shall be governed by Section 2.3, the Company, Parent shall, and Merger Sub the Company and Parent shall cause their respective Subsidiaries to, each use its their reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under to consummate and make effective the Transactions as promptly as practicable, including:
(i) obtaining from any Governmental Entity and, to the extent reasonably requested by Parent, any other third party consents, licenses, permits, waivers, approvals, authorizations or orders, making any filings and sending any notices, in each case, which are material and required to be obtained, made or sent by the Company or Parent or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions (including under the HSR Act or any applicable Laws Antitrust Laws, if necessary); provided, however, that in connection therewith none of the Company or its Subsidiaries, nor Parent, Merger Sub or any of their Affiliates shall be required to make or agree to make any payment or accept any material conditions or obligations, including amendments to existing conditions and regulations obligations;
(ii) executing or delivering any additional instruments necessary to consummate the transactions contemplated hereby as soon as reasonably practicable after Transactions and to fully carry out the date purposes of this Agreement Agreement; and
(and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (iiiii) preparing and filing as promptly as practicable all documents forms, registrations and notices required to effect all necessary applications, notices, petitions, filings and other documents and be filed to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, and (iii) taking consummate the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings)Transactions.
(b) To the extent permissible under The Company and Parent shall cooperate with each other in connection with making all filings, submissions, applications and requests. The Company and Parent shall each use their reasonable best efforts to furnish to each other (on an outside counsel basis if appropriate) all information required for any filing, submission, application or request to be made pursuant to applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18Transactions.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Company and Parent and Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Applicable Law to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documents documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain (ii) using reasonable best efforts in connection with obtaining as promptly as practicable and maintaining all approvals, consents, clearances, waivers, licenses, orders, registrations, authorizationspermits, approvals authorizations and permits other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided, however, that this clause (ii) shall not require Parent or the Company to settle or otherwise resolve any claim, suit, action or other proceeding, including any administrative or judicial claim, suit, action or other proceeding, challenging this Agreement or any of the transactions contemplated hereby as promptly as practicable, provided that Parent or the Company, as the case may be, does not unreasonably delay any such settlement or resolution.
(b) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten Business Days after the date hereof. Each of Parent and the Company agrees (x) not to extend any waiting period under the HSR Act or enter into any agreement with any Governmental Authority to delay the consummation of the transactions contemplated by this Agreement, and except with the prior written consent of the other parties to this Agreement (iiiwhich consent shall not be unreasonably withheld, conditioned, or delayed), (y) taking the reasonable steps to respond as may be necessary promptly as practicable to any inquiries received from any Governmental Authority for additional information or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary (z) to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as practicable following the date of this Agreement. Each party hereto shall (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform notify the other parties of any substantive communication (including the initiation of any proceeding) received by such to that party from any Governmental Entity Authority, and, subject to Applicable Law, permit the other parties to review and any material communication received from any private partydiscuss in advance, and consider in each case, good faith the views of the other parties in connection with, any proposed written communication to any Governmental Authority, (ii) promptly furnish the other parties with any pending or threatened litigation regarding any copies of all correspondence, filings and written communications between it and its Representatives, on the one hand, and such Governmental Authority, on the other hand, with respect to this Agreement and the transactions contemplated hereby, (iii) permit the other parties, not agree to participate in any substantive meeting or the other parties’ legal counsel, to review discussion with any Governmental Authority in respect of any filing, submission investigation or other communication given by it to inquiry concerning any Governmental Entity or, competition or antitrust matters in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult transactions contemplated hereby unless it consults with the other parties in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other PersonAuthority, give gives the other parties the opportunity to attend and participate therein and (iv) furnish the other parties with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Authority or members of their respective staffs on the other hand, with respect to any competition or antitrust matters in such meetings, conferences, conference calls, discussions and communicationsconnection with this Agreement. Notwithstanding the foregoing, the obligations set forth Any materials exchanged in connection with this Section 6.5(b) 8.01 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns, and to remove references concerning valuation or other competitively sensitive material, and the parties may, as they deem advisable and necessary, designate any materials provided to the other under this Section 8.01 as “outside counsel only.” Parent shall not apply be responsible for paying all filing fees under the HSR Act and any other Applicable Laws relating to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted antitrust or competition with respect to the transactions contemplated hereby under any applicable Law by this Agreement. All reasonable and documented, out-of-pocket fees and expenses incurred by the Company or if any suit is instituted by any Governmental Entity Parent or any private of their respective Affiliates in connection with obtaining (or seeking to obtain) the expiration or termination of the applicable waiting period under the HSR Act shall be borne by Parent and reimbursed to the Company (to the extent incurred by the Company or any of its Affiliates) on a monthly basis, as incurred, provided, that (A) any outside legal counsel to the Company (other than Hxxxx Xxxxxxx US LLP ) with respect to antitrust or competition in connection with the transactions contemplated hereby shall be satisfactory to Parent (in its sole discretion), (B) any such fees shall be charged at no greater than each applicable third party firm’s regular third party rates without any premium or similar amount charged or applied thereon or thereto and (C) all expenses of the Company and its Affiliates payable by Parent pursuant to this Section 8.01(b) shall not exceed $10,000,000 in the aggregate without the prior written consent of Parent.
(c) Nothing in this Section 8.01 or anything else in this Agreement shall require Parent or any of its Subsidiaries to (and neither the Company nor any of its Subsidiaries shall, or shall offer or agree to, do any of the following without Parent’s prior written consent): (i) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition or license of any assets, properties, products, rights, services or businesses of Parent, the Company or any of their respective Affiliates, or any interest therein, or agree to any other structural or conduct remedy; or (ii) otherwise take or commit to take any actions that would limit Parent’s, the Company’s or any of their respective Affiliates’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses, or any interest therein (any of the actions described in the preceding clauses (i) and (ii), a “Burdensome Condition”); provided, however, that Parent agrees to defend through litigation on the merits any claim, suit, action or other proceeding, including any administrative or judicial claim, suit, action or other proceeding, challenging this Agreement or any of the transactions contemplated hereby as violative of, or otherwise in contravention of, the HSR Act, the Cxxxxxx Act, the Sxxxxxx Act, the Federal Trade Commission Act or any other federal or state statute, rule, regulation, order, decree, administrative or judicial doctrine, or any other Applicable Law that is designed or intended to prohibit, restrict or regulate actions in the United States having the purpose or effect of monopolization or restraint of trade, that is commenced or asserted by any Governmental Authority or any other party, in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that could prevent the Closing from occurring prior to the End Date. Notwithstanding the foregoing, at the written request of Parent, the Company shall, and shall cause its Subsidiaries to, agree to take any action that would constitute a Burdensome Condition so long as such action shall not result in a reduction in the Merger Consideration payable to holders of Shares in the Merger and is conditioned upon the occurrence of the Closing.
(d) Without limiting Parent’s other obligations under this Section 8.01, Parent shall be entitled to direct the defense of this Agreement and the transactions contemplated hereby before any Governmental Authority and take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities regarding (i) the expiration or termination of any applicable Lawwaiting period relating to the Merger under the HSR Act or (ii) obtaining any consent, each of the Companyapproval, waiver, clearance, authorization or permission from a Governmental Authority, so long as Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its uses reasonable best efforts (to resolve the extent reasonably practicable) to consult (A) in advance with the Company and in good faith takes the Company’s views into account regarding the overall strategic direction of any such objections defense, meetings or challenges as negotiations and (B) with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such defense, meetings or negotiations.
(e) During the period starting on the date of this Agreement and ending upon the earlier of termination of this Agreement in accordance with its terms and the Effective Time, none of Parent, Merger Sub or the Company shall, and Parent, Merger Sub and the Company shall not permit any of their respective Subsidiaries to, enter into any acquisition, joint venture, exclusive arrangement or other similar arrangement, or any agreement to effect, or any letter of intent or similar document contemplating, any acquisition (including by merger or acquisition), joint venture, exclusive arrangement or other similar arrangement, that would reasonably be expected to prevent, materially hinder or materially delay the ability of the parties to (i) obtain the expiration or termination of the waiting period under the HSR Act or any other Applicable Laws relating to antitrust or competition applicable to the transactions contemplated by this Agreement or (ii) obtain any authorizations, consents, orders, and approvals of any Governmental Entity or private party may have to such transactions under such applicable Law so as to permit Authorities necessary for the consummation of the transactions contemplated hereby on the terms set forth in by this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub parties hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, clearances, consents and approvals, including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall any party hereto be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than ten (10) business days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations, clearances or approvals, (iii) use reasonable best efforts to take, or cause to be taken, the all other actions and to do, or cause to be done, the all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective the transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger and the other transactions contemplated hereby so as to enable the Closing to occur as soon as reasonably practicable after the date of this Agreement possible (and in any event no later than the Outside End Date), including including, without limitation, (ix) using reasonable best efforts proposing, negotiating, committing to takeand effecting, by consent decree, hold separate order, trust or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company or its Subsidiaries and (y) otherwise taking or committing to take actions that after the Closing Date would limit the freedom of the Surviving Corporation’s or its Subsidiaries’ or affiliates’ freedom of action with respect to, or cause its ability to retain, one or more of its or its Subsidiaries’ businesses, product lines or assets, in each case as may be takenrequired in order to avoid the entry of, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents or to effect all necessary applicationsthe dissolution of, noticesany injunction, petitions, filings and temporary restraining order or other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreementorder in any suit or proceeding which would otherwise have the effect of preventing or delaying the Closing beyond the End Date, and (iiiiv) taking subject to applicable legal limitations and the reasonable steps as may be necessary or advisable to make all necessary filings and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction instructions of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with keep each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to the completion of the transactions contemplated hereby and thereby, including promptly inform furnishing the other parties with copies of any communication (including the initiation of any proceeding) notices or other communications received by such the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party from and/or any Governmental Entity with respect to such transactions. The Company and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) Parent shall permit counsel for the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right reasonable opportunity to review in advance, subject to applicable Laws relating to and consider in good faith the exchange of information, all views of the information relating to such party, and any of its respective Subsidiaries, which appears other party in any filing made connection with, or materials submitted to, any third party or proposed written communication to any Governmental Entity. Each of the Company and Xxxxxx agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with respect to this Agreement or any Governmental Entity in connection with the Merger), (iv) consult proposed transactions unless it consults with the other parties party in advance of any meetingand, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted not prohibited by such Governmental Entity or other PersonEntity, give gives the other parties party the opportunity to attend and participate participate. Notwithstanding anything in this Section 5.6 to the contrary, in no event will Parent or Merger Sub be obligated to, and the Company and its Subsidiaries will not, propose or agree to accept any undertaking or condition, to enter into any consent decree or hold separate order, to make any divestiture, to accept any operational restriction or limitation, or to take any other action that would (i) involve assets or operations of Parent or any of its affiliates or (ii) reasonably be expected to result in a Company Material Adverse Effect; provided, that for solely the purposes of this Section 5.6(b), a Company Material Adverse Effect shall include, without limitation, the divestiture of businesses, product lines or assets that accounted for 15% or more of the Company’s and its Subsidiaries’ consolidated 2006 EBITDA. Further, notwithstanding anything in this Section 5.6 to the contrary, in no event will the Company or any of its Subsidiaries be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs. Notwithstanding anything to the contrary in this Agreement, in no event will Parent or Merger Sub be obligated to, and the Company and its Subsidiaries will not, propose or agree to accept any undertaking or condition to enter into any consent decree or hold separate order, to make any divestiture, to accept any operational restriction or limitation, or to take any other action that would involve assets or operations of the Company or any of its affiliates in order to satisfy the condition set forth in Section 6.1(d); provided, however, as necessary or expedient to satisfy the conditions set forth in Section 6.1(d), Parent, Merger Sub, the Company and its Subsidiaries shall use commercially reasonable efforts to effect intra-Company restructurings of the respective licensees in states accounting for up to five percent (5%) of the consolidated revenues of Comdata Network, Inc. in 2006, in a manner that does not materially and adversely affect the business or operations of the Company and its Subsidiaries in such meetings, conferences, conference calls, discussions and communicationsstates. Notwithstanding In addition to the foregoing, the obligations Company and its Subsidiaries shall take all actions reasonably requested by Parent, including intra-Company restructurings of the respective money transmitter, seller of checks or payroll processor licensees in the various states (regardless of the revenue generated therein), in connection with the satisfaction of the condition set forth in this Section 6.5(b) shall not apply to 6.1(d); provided that the Company may condition any Transaction Litigation, which is such restructurings or other actions that adversely affect the subject of Section 6.18Company such that they become effective only at the Closing.
(c) If any objections are asserted with respect to In furtherance and not in limitation of the transactions contemplated hereby under any applicable Law or covenants of the parties contained in this Section 5.6, if any suit administrative or judicial action or proceeding, including any proceeding by a private party, is instituted by any Governmental Entity (or any private party threatened to be instituted) challenging any of the transactions transaction contemplated hereby by this Agreement as violative of any applicable Regulatory Law, each of the Company, Company and Parent shall cooperate in all respects with each other and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, shall use its their respective reasonable best efforts to resolve contest and resist any such objections action or challenges as such Governmental Entity proceeding and to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law so as to permit overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated hereby on by this Agreement. Notwithstanding the terms set forth foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or Section 7.1(c) so long as soon as reasonably practicable after the date such party has, prior to such termination, complied with its obligations under this Section 5.6.
(d) For purposes of this Agreement Agreement, “Regulatory Law” means the Xxxxxxx Act of 1890, the Xxxxxxx Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including without limitation any antitrust, competition or trade regulation Laws, that are designed or intended to (and in i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition or (ii) protect the national security or the national economy of any event no later than the Outside Date)nation.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, each of the Company, Parent and Merger Sub shall parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereby, including (i) using reasonable best efforts to take, or cause to be taken, the actions to: (i) take all acts necessary to cause the conditions to the Offer and to the Closing set forth in Article VII to be satisfiedsatisfied as promptly as practicable, (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consentsactions or nonactions, clearances, waivers, licenses, orders, consents and approvals from Governmental Entities and make all necessary registrations, authorizationsdeclarations and filings (including filings and requesting early termination of the waiting period required under the HSR Act) with, and take all steps as may be necessary to obtain an approval or waiver from, or to avoid a claim, action, suit, proceeding or investigation by, any Governmental Entity, (iii) obtain consents, approvals and permits waivers under Contracts from third parties reasonably requested by Parent to be obtained in connection with the transactions contemplated by this Agreement, provided, however, that in no event shall Parent, Merger Sub, the Company or any of their respective Subsidiaries be required to make any payment to such third parties or concede anything of value in any case prior to the Effective Time in order to obtain any such consent, clearance, approval or waiver, (iv) pay any fees due with respect to this Agreement, the Offer and the Merger required under (A) the Exchange Act, and any other applicable federal or state securities Laws, (B) the HSR Act and (iiiC) taking any other applicable Law, (v) cooperate with each other in connection with (A) preparing and filing the reasonable steps as may be necessary Offer Documents, the Schedule 14D-9, the Proxy Statement and any other required filings with the SEC and (B) determining whether any action by or advisable to make all necessary filings and obtain all such consentsin respect of, clearancesor filing with, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shallEntity is required, in connection with the efforts referenced above consummation of the Offer or the Merger; and (vi) execute and deliver any additional instruments necessary to obtain all requisite approvals, clearances and authorizations for consummate the transactions contemplated herebyby, and to fully carry out the purposes of, this Agreement; provided, however, that the foregoing provisions of this Section 6.03 shall not require the Company to perform, satisfy or discharge any obligations of Parent or Merger Sub under this Agreement or otherwise, or Parent or Merger Sub to perform, satisfy or discharge any obligations of the Company under this Agreement or otherwise. In connection with and without limiting the foregoing, the Company and the Company Board shall (A) take all action necessary to ensure that no "fair price" or other state takeover statute is or becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement and (B) if any "fair price" or other state takeover statute becomes applicable to this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement, take all action necessary to ensure that the Offer, the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement. No party shall voluntarily extend any waiting period under the HSR Act or enter into any agreement with any Governmental Entity to delay or not to consummate the Offer, the Merger and the other transactions contemplated hereby except with the prior written consent of the other parties (such consents not to be unreasonably withheld, conditioned or delayed and which reasonableness shall be determined in light of each party's obligation to use its reasonable best efforts to (i) cooperate do all things necessary, proper or advisable to consummate and make effective, in all respects with each other party in connection with any filing or submission the most expeditious manner practicable, the Offer, the Merger and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby). In connection with the consents, approvals and waivers referred to in clause (iii) permit above, (x) the other partiesCompany shall keep Parent informed of all material developments in seeking such consents, approvals or waivers and shall, at Parent's request, include Parent in any discussions or communications with any parties whose consent, waiver or approval is sought; (y) such consents, approvals and waivers shall be in a form reasonably acceptable to Parent and the Company; and (z) in the event the Offer is not consummated or the other parties’ legal counselMerger does not close for any reason, neither Parent nor Merger Sub shall have any Liability to review any filingthe Company, submission its stockholders or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person for any costs, claims, liabilities or damages resulting from the Company seeking to obtain such consents, approvals and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18waivers.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on the terms set forth in this Agreement as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date).
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, including Section 6.2, each of Parent and Acquisition Sub, on the one hand, and (without limiting the rights of the Company and Parent specifically provided under Section 6.2, Section 6.3, Section 6.4 and Section 6.5) the Company, Parent and Merger Sub on the other hand, shall use its reasonable best efforts to take, or cause to be taken, the actions all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under this Agreement and applicable Laws and regulations Law or otherwise to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby as soon as reasonably practicable after the date of by this Agreement (and in any event no later than the Outside Date)Agreement, including (i) using reasonable best efforts to, in all cases subject to take, or cause to be taken, the actions necessary to Section 6.2: (i) cause the conditions to Closing the Merger set forth in Article VII to be satisfied, ; (ii) preparing and filing as promptly as practicable all documents to effect obtain all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as practicable all consents, clearancesactions or non-actions, waivers, licensesConsents, ordersapprovals, Orders and authorizations from Governmental Authorities and make all necessary registrations, authorizations, approvals declarations and permits filings with Governmental Authorities that are necessary to consummate the Merger and the other transactions contemplated by this Agreement, ; and (iii) taking the reasonable steps as may be obtain all necessary or advisable to make all necessary filings appropriate Consents, waivers and obtain all such consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary under any Material Contracts or material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To Permits of the extent permissible under applicable Law Company or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, its Subsidiaries in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication (including the initiation of any proceeding) received by such party from any Governmental Entity and any material communication received from any private party, in each case, in connection with any pending or threatened litigation regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such party, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or and the Merger), (iv) consult with the other parties in advance of any meeting, conference, conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable Law, each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve any such objections or challenges as such Governmental Entity or private party may have to such transactions under such applicable Law so as to permit consummation of the transactions contemplated hereby on so as to maintain and preserve the terms set forth in benefits under such Material Contracts and material Permits following the consummation of the transactions contemplated by this Agreement as soon as provided that, the Company shall coordinate with Parent and reasonably practicable after cooperate in determining whether any actions, Consents, approvals or waivers are required to be obtained from third parties (including under any Material Contract) in connection with consummation of the date of Merger and the transactions contemplated by this Agreement and seeking any such actions, Consents, approvals or waivers. Notwithstanding anything to the contrary herein, neither Parent, the Company nor any of their respective Subsidiaries shall be required to (and in nor without the prior consent of Parent shall the Company or any event no later of its Subsidiaries agree to) pay any consent or other similar fee (other than immaterial administrative fees or costs), “profit sharing” or other similar payment or other consideration (including increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the Outside Dateexisting terms of any Contract), or the provision of additional security (including a guaranty) to obtain the Consent, waiver or approval of any Person under any Contract.
Appears in 1 contract
Samples: Merger Agreement (Itron Inc /Wa/)
Reasonable Best Efforts. (a) Subject to the terms The parties hereto shall cooperate with each other and conditions of this Agreement, each of the Company, Parent and Merger Sub shall use its their reasonable best efforts to takepromptly prepare and file all necessary documentation, or cause to be taken, the actions and to do, or cause to be done, the things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated hereby as soon as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date), including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing as promptly as practicable all documents to effect all necessary applications, notices, petitionspetitions and filings, filings and other documents and to obtain as promptly as practicable all permits, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits contemplated by this Agreement, authorizations of all third parties and (iii) taking the reasonable steps as may be Governmental Entities and Lloyd’s which are necessary or advisable to make all necessary filings consummate the Merger and obtain the other Transactions, and to comply with the terms and conditions of all such permits, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing authorizations of all necessary information such Governmental Entities and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances and authorizations for the transactions contemplated hereby, use its reasonable best efforts to (i) Lloyd’s. The parties shall cooperate in all respects with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any private party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties of any communication therewith (including the initiation furnishing of any proceeding) received by such party from any Governmental Entity information and any material communication received from reasonable undertaking or commitments that may be required to obtain any private party, in each case, in connection with any pending or threatened litigation regarding any such approvals). Each of the transactions contemplated hereby, (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person Easterly and to receive final versions of the same (it being understood that each party shall, without limitation, Sirius shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to applicable Laws relating to the exchange of information, all of the information relating to such partyEasterly or Sirius, as the case may be, and any of its their respective Subsidiaries, which appears in any filing made with, or written materials submitted to, any third party or any Governmental EntityEntity in connection with the Transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information filed under a claim of confidentiality. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the Transactions contemplated by this Agreement or and each party will keep the Merger), (iv) other apprised of the status of matters relating to completion of the Transactions contemplated herein. Each party shall consult with the other parties in advance of any meeting, conference, meeting or conference call, discussion or communication with, any such Governmental Entity or, in connection with any proceeding by any private party, with any other Person and (v) to the extent permitted by such Governmental Entity or other Person, give the other parties the opportunity to attend and participate in such meetings, conferences, conference calls, discussions and communications. Notwithstanding the foregoing, the obligations set forth in this Section 6.5(b) shall not apply to any Transaction Litigation, which is the subject of Section 6.18.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private Lloyd’s in connection with the Transactions contemplated by this Agreement. Each party challenging any of the transactions contemplated hereby as violative of any applicable Law, shall each of the Company, Parent and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve (i) take all action reasonably necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and (ii) if any Takeover Law becomes applicable to any of the Transactions, take all action to enable the Transactions to be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such objections Law on the Transactions.
(b) In furtherance and not in limitation of the foregoing, each of Easterly and Sirius shall use its reasonable best efforts to (i) avoid the entry of, or challenges as such Governmental Entity to have vacated, lifted, reversed or private party may have to such transactions under such applicable Law overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to permit consummation enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Easterly, Sirius and their respective Subsidiaries. Notwithstanding anything to the transactions contemplated hereby on the terms set forth contrary in this Agreement, nothing contained in this Agreement as soon as shall require Easterly or Sirius or their respective Subsidiaries to take, or agree to take, any actions specified in this Section 5.8 that, individually or in the aggregate, would reasonably practicable after the date of this Agreement be expected to have a material and adverse effect on Sirius, any Sirius Subsidiary or Easterly (and in any event no later than the Outside Datecase, measured on a scale relative to Easterly, Sirius and any Sirius Subsidiary on a combined basis).
(c) This Section 5.8 shall not apply with respect to matters related to Tax (which shall be governed by Section 5.15 (Tax Matters).
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each of the Company, Parent and Merger Sub shall Party will use its reasonable best efforts to take, or cause to be taken, the all actions and to do, or cause to be done, the all things necessary, proper or advisable under this Agreement and applicable Laws and regulations Law to consummate the transactions contemplated hereby Transactions, including the Merger, as soon promptly as reasonably practicable after the date of this Agreement (and in any event no later than the Outside Date)hereof, including (i) using reasonable best efforts to take, or cause to be taken, the actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documents documentation to effect all necessary or advisable applications, notices, petitions, filings filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions, including the Merger, as promptly as practicable after the date hereof, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 7.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals and permits contemplated by as promptly as practicable after the date hereof. Notwithstanding anything to the contrary set forth in this Agreement, the obligations of Parent under this Section 7.2 shall include: (i) the defense through litigation on the merits of any claim asserted in any court, agency or other Proceeding by any Person (including any Governmental Entity) seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, including the Merger; (ii) agreeing or committing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of Parent, the Company and their respective Subsidiaries subsequent to the Effective Time and (iii) taking agreeing or committing to license, hold separate or enter into similar arrangements with respect to its respective assets or the reasonable steps assets of the Company or conduct of business arrangements or terminating any and all existing relationships and contractual rights and obligations as a condition to obtaining any and all expirations of waiting periods under the HSR Act or consents from any Governmental Entity necessary, to consummate the transactions contemplated hereby (each of clause (i), (ii), or (iii), an “Antitrust Remedial Action”), provided, however, that nothing in this Agreement shall require Parent to agree or commit to, and the Company may not agree or commit to, any Antitrust Remedial Action with respect to the assets or businesses described in Section 7.2(a) of the Company Disclosure Letter. In furtherance and not in limitation of the foregoing, each Party agrees to (A) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable, and in any event within ten (10) business days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as practicable and advisable any additional information and documentary materials that may be necessary required or advisable pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and (B) make all other required or advisable filings as promptly as practicable after the date hereof, and to supply as promptly as practicable and advisable any additional information and documentary materials that may be requested under any Antitrust Laws and, subject to the terms and conditions of this Agreement, to take all other actions necessary filings to cause the expiration or termination of the applicable waiting periods or obtain consents under such Antitrust Laws.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 7.2(a) to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, authorizations, approvals and permits (including providing all necessary information and documentary material and providing personnel as necessary to attend any regulatory meetings, hearings or other proceedings).
(b) To the extent permissible under applicable Law or any rule, regulation or restriction of any Governmental Entity, each of the Company, Parent and Merger Sub shall, in connection with the efforts referenced above to obtain all requisite approvals, clearances permits, and authorizations for the transactions contemplated herebyTransactions under the HSR Act or any other Antitrust Law, use its reasonable best efforts to (i) cooperate in all respects and consult with each other party in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by any a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) keep the other parties apprised of the status of matters relating to completion of the transactions contemplated hereby and promptly inform the other parties Party of any communication (including the initiation of any proceeding) received by such party from Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity Entity, by promptly providing copies to the other Party of any such written communications, and of any material communication received from or given in connection with any proceeding by a private party, in each case, in connection with any pending or threatened litigation case regarding any of the transactions contemplated hereby, Transactions and (iii) permit the other parties, or the other parties’ legal counsel, to review any filing, submission or other communication given by it to any Governmental Entity or, in connection with any pending or threatened litigation by any private party, with any other Person and to receive final versions of the same (it being understood that each party shall, without limitation, have the right Party to review in advance, subject to applicable Laws relating to the exchange of information, all of the information relating to such partyadvance any communication that it gives to, and any of its respective Subsidiaries, which appears in any filing made with, or materials submitted to, any third party or any Governmental Entity, with respect to this Agreement or the Merger), (iv) consult with the each other parties in advance of any meeting, conference, substantive telephone call or conference call, discussion or communication with, the DOJ, the FTC or any such other Governmental Entity Entity, or, in connection with any proceeding by any a private party, with any other Person Person, and (v) to the extent permitted by such the DOJ, the FTC, other applicable Governmental Entity Entity, other Person or other Personapplicable Law, give the other parties Party the opportunity to attend and participate in such any meetings, conferences, conference calls, discussions and communications. Notwithstanding telephone calls or videoconferences with the foregoingDOJ, the FTC or other Governmental Entity or other Person; provided, however, that materials required to be provided pursuant to the foregoing clauses (i)-(iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements existing as of the date hereof and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 7.2(b) as “Outside Counsel Only Material.” Without limiting Parent’s cooperation obligations set forth described in Section 7.2(a) and this Section 7.2(b) (including, for the avoidance of doubt, Parent’s obligation to use reasonable best efforts to take all steps as may be necessary, subject to the limitations in this Section 6.5(b) shall not apply 7.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals as promptly as practicable after the date hereof), Parent will control the ultimate strategy for securing approvals and expiration of relevant waiting periods under the Antitrust Laws, including any filings, submissions and communications with or to any Transaction LitigationGovernmental Entity in connection therewith, which is and taking into account in good faith any comments of, the subject of Section 6.18Company or its Representatives relating to such strategy.
(c) If In connection with and without limiting the foregoing, the Company shall give any objections notices to third parties required under Contracts that are asserted with respect to necessary or desirable for the transactions contemplated hereby under any applicable Law or if any suit is instituted by any Governmental Entity or any private party challenging any consummation of the transactions contemplated hereby as violative Transactions. The Company shall use, and cause each of the Company Subsidiaries to use, its commercially reasonable efforts to obtain any applicable Lawthird party consents to any Contracts in the event Parent requests, in writing, the Company to do so; provided, however, each of the Company, Parent parties acknowledges and Merger Sub shall, subject to Section 6.18 in the event of any Transaction Litigation, use its reasonable best efforts to resolve agrees that obtaining any such objections consent or challenges as such Governmental Entity or private party may have approval shall not, in and of itself, be a condition to such transactions under such applicable Law so as to permit the consummation of the transactions contemplated hereby on Transactions, including the terms set forth Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), to obtain such third party consents (except, in this Agreement as soon as reasonably practicable after the date case of this Agreement the Company, if requested by Parent and either (and in any event no later than i) reimbursed or indemnified for by Parent or (ii) subject to the Outside Dateoccurrence of the Effective Time).
Appears in 1 contract
