Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth herein, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 (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 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.
Appears in 4 contracts
Sources: Implementation Agreement, Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Holding Co. Ltd.)
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 set forth hereinin this Agreement, each of the parties agrees to hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable law) to taketake promptly, or cause to be taken, all actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents(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) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. .
(b) 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, Parent shall (i) use their reasonable best efforts to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Acquisition Merger or any of the other transactions contemplated hereby, and (ii) 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 the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement hereby and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement 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 actions or nonactions, waivers, consents and approvals from Governmental Entities (including the OTS Approval) 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 (including the OTS Approval).
(d) At the reasonable request of Parent, the Company and its subsidiaries shall use their reasonable best efforts and cooperate with Parent in order to permit all of the indebtedness 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 amendments and supplemental indentures, the "Indenture"), to be called for redemption and redeemed as promptly as possible following the Closing. In furtherance thereof, the Company and its subsidiaries agree to request that The Bank of New York consent to shorten the notice period required pursuant to Section 3.02 of the Indenture from 60 days to 30 days or agree to accept a redemption notice that is conditioned upon the consummation of the Merger.
Appears in 4 contracts
Sources: Merger Agreement (Mafco Holdings Inc), Agreement and Plan of Merger (Golden State Bancorp Inc), Merger Agreement (Ford Gerald J)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, Parent, Sub and the Company each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (most expeditious manner practicable and in any event before prior to the Termination Date)consummation of the Parent Distribution, the Acquisition Restructuring, the Company Distribution and the Merger and the other transactions contemplated by this Agreementthe Transaction Agreements, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 obtain an approval, waiver, order or authorization from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary waivers, consents, approvals approvals, orders or waivers authorizations from third parties, (iii) the defending of any suit, action or proceeding, whether judicial or administrative, challenging any Transaction Agreement or the consummation of any of the transactions contemplated by any Transaction Agreement, including all Necessary Consents, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. the Transaction Agreements.
(b) In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to any of the Acquisition, this Agreement Transaction Agreements or any of the transactions contemplated by this Agreement, use reasonable best efforts thereby and (ii) if any state takeover statute or similar statute or regulation becomes applicable to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver any of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.Transaction Agreements or
Appears in 3 contracts
Sources: Merger Agreement (Gaylord Entertainment Co), Merger Agreement (Westinghouse Electric Corp), Merger Agreement (Westinghouse Electric Corp)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act, any other pre-merger filings and State Takeover Approvals), (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Offer or the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Offer, the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by this Agreementbusinesses, use reasonable best efforts to ensure product lines or assets of Parent or any of its Subsidiaries or that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable otherwise would have a Material Adverse Effect on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyParent.
Appears in 3 contracts
Sources: Merger Agreement (Smith & Nephew Holdings Inc), Merger Agreement (Exogen Inc), Merger Agreement (Smith & Nephew Inc)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of Parent and Acquisition Sub, on the parties agrees to 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, on the other hand, shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to, in all cases subject to Section 6.2: (i) cause the conditions precedent to the Merger set forth in Article VI VII to be satisfied, ; (ii) obtain all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities Authorities and the making of make all necessary registrations, declarations 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 Authorities that are necessary to avoid any suit, claim, action, investigation or proceeding consummate the Merger and the other transactions contemplated by any Governmental Entity, this Agreement; and (iii) obtain all necessary or appropriate consents, waivers and approvals under any Material Contracts to which the Company or waivers from third parties, including all Necessary Consents, any of its Subsidiaries is a party in connection with this Agreement and (iv) execute or deliver any additional instruments necessary to consummate the consummation of the transactions contemplated by, hereby so as to maintain and to fully carry out preserve the purposes of, this Agreement. In connection with and without limiting benefits under such Material Contracts following 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 consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary herein, use reasonable best efforts the Company shall not be required to ensure that (nor without the Acquisition and the prior consent of Parent shall it, or shall it agree to) pay any consent or 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 Legal Requirement on the Acquisition similar fee, “profit sharing” or other similar payment or other consideration (including by seeking a waiver of increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the application existing terms of any such Legal Requirement, if availableContract), this Agreement and or the transactions contemplated herebyprovision of additional security (including a guaranty) to obtain the consent, waiver or approval of any Person under any Contract.
Appears in 3 contracts
Sources: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Integrated Silicon Solution Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as reasonably practicable, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, Entity and (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, the execution and (iv) execute or deliver delivery of 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, Parent, Sub and the Company shall as promptly as reasonably practicable duly file with the United States Federal Trade Commission (the “FTC”) and its Board the Antitrust Division of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable the Department of Justice (the “Antitrust Division”) the notification and report form required under the HSR Act with respect to the Acquisition, this Agreement or any of the transactions contemplated by this Agreement.
(b) Each of Parent and the Company shall (i) respond as promptly as reasonably practicable under the circumstances to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from either Governmental Entity, (ii) not 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) and (iii) not 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, conditioned or delayed). Parent and the Company shall, from the date of this Agreement until the Outside Date, use their respective reasonable best efforts to ensure avoid the entry of, or to have lifted, vacated or terminated, any injunction or Judgment that would restrain, prevent or delay the Acquisition Closing.
(c) In furtherance and not in limitation of the covenants of the parties contained in Sections 5.03(a) and (b), if any objections are asserted or if any suit is instituted (or threatened to be instituted) by the FTC, the Antitrust Division or any other applicable Governmental Entity or any private party with respect to any of the transactions contemplated hereby that would prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated hereby, each of Parent, Sub and the Company shall use its reasonable best efforts, and cause their Affiliates to use their reasonable best efforts, to resolve any such objections or suits so as to permit consummation of the transactions contemplated hereby, including by selling, holding separate or otherwise disposing of or conducting its business in a manner which would resolve such objections or suits, agreeing to sell, hold separate or otherwise dispose of or conduct its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such objections or suits; provided that any such action with respect to the Company or its Subsidiaries shall be conditioned upon the consummation of the Merger.
(d) Each of the Company, Parent and Sub agrees that, between the date of this Agreement and the Closing Date, except as permitted by Section 4.02, they shall not, and shall cause their Affiliates not to, directly or indirectly, take any action that, individually or in the aggregate, would, or would reasonably be expected to, prevent or materially impede, interfere with, hinder or delay the consummation of 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyAgreement.
Appears in 3 contracts
Sources: Merger Agreement (Teleflex Medical Inc), Merger Agreement (Teleflex Inc), Merger Agreement (Arrow International Inc)
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 5.2 and Section 5.7 hereof, 5.3 hereof and upon the other terms and subject to the conditions set forth herein, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute the defending of any suits, claims, actions, investigations or deliver proceedings, whether judicial or administrative, 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, and (v) the execution or delivery of 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 AcquisitionMerger, this Agreement or any of the transactions contemplated by this Agreement, use its reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available)Merger, this Agreement and the transactions contemplated hereby.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Agreement and Plan of Reorganization (McData Corp)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement (including Section 6.02), each of the parties agrees to shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner reasonably practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain 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, including all Necessary Consents, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Transactions and to fully carry out the purposes ofof this Agreement; provided, however, that Parent shall not be required to consent to any action described in paragraph (a) of Annex 1 to this Agreement. In connection with and without limiting the foregoing, Parent, Sub, the Company and its the Company Board of Directors shall, if any shall (A) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the Acquisition, any Transaction or this Agreement and (B) if any state takeover statute or any of the transactions contemplated by similar statute or regulation becomes applicable to this Agreement, use reasonable best efforts take all action necessary to ensure that the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition Offer, the Merger and the other Transactions.
(including by seeking a waiver b) The Company shall give prompt notice orally and in writing to Parent, and Parent or Sub shall give prompt notice orally and in writing to the Company, of any failure of any condition to the Offer set forth in Annex 1 or any condition to the Merger set forth in Article 8; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the application parties or the conditions to the obligations of any such Legal Requirement, if available), the parties under this Agreement and the transactions contemplated herebyAgreement.
Appears in 3 contracts
Sources: Merger Agreement (Ruby Merger Corp.), Merger Agreement (Ruby Merger Corp.), Merger Agreement (Retek Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement and compliance with applicable Law and the other terms of this Agreement, each of the parties W. P. Carey, Merger Sub and CPA16 agrees to use its reasonable best efforts to take, or cause to be taken, all actions, 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 to fulfill all conditions applicable to such party or its Subsidiaries pursuant to this Agreement and to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreementthe Transaction Documents, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all reasonable steps and remedies as may be necessary to avoid any suitobtain an approval, claim, action, investigation waiver or proceeding by exemption from any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals approvals, waivers or waivers exemptions from non-governmental third parties, including all Necessary Consents, and (iviii) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with addition, each of W. P. Carey, Merger Sub and without limiting CPA16 agrees to use its reasonable best efforts to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging the foregoing, the Company and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable to the AcquisitionMerger, this Agreement or any of the transactions contemplated by the Transaction Documents, including seeking to have any stay, temporary restraining order, injunction, or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated by the Transaction Documents entered by any court or other Governmental Entity vacated or reversed. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purpose of this Agreement, use reasonable best efforts the proper officers and directors of CPA16, W. P. Carey and Merger Sub shall take all such necessary action. From the date of this Agreement through the Effective Time, CPA16 shall timely file, or cause to ensure be filed, with the SEC all CPA16 SEC Documents required to be so filed.
(b) Each of CPA16, W. P. Carey and Merger Sub shall give prompt notice to each other party if (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or inaccurate in any material respect or (ii) it fails to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application delivery of any notice pursuant to this Section shall not limit or otherwise affect the remedies available hereunder to the party receiving such Legal Requirementnotice; and, if availableprovided, further, that failure to give such notice shall not be treated as a breach of covenant for the purposes of Sections 5.2(b) or 5.3(b), this Agreement and as the transactions contemplated herebycase may be.
Appears in 2 contracts
Sources: Merger Agreement (Corporate Property Associates 16 Global Inc), Agreement and Plan of Merger (W. P. Carey Inc.)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act, any other pre-merger filings and State Takeover Approvals), (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Offer or the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Offer, the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure businesses or assets of Parent or any of its Subsidiaries or that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable otherwise would have a Material Adverse Effect on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyParent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Tupperware Corp), Merger Agreement (Lowrance Electronics Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Combination Transactions and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: for (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities Entities, including any required action or non-action under the Antitrust Laws (the “Required Consents”) prior to the Initial Holdco Merger Effective Time, and the making of all necessary registrations, declarations registrations 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 obtain a Required Consent from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers 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 all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with furtherance and without limiting 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 Company and its Board of Directors shallHSR Act with respect to the transactions contemplated hereby as promptly as practicable, (ii) appropriate filings, if any takeover statute or similar Legal Requirement is or becomes applicable are required, pursuant to foreign Antitrust Laws as promptly as practicable and (iii) all other necessary filings with other Governmental Entities relating to the AcquisitionCombination Transactions, this Agreement and, in each case, to supply as promptly as practicable any additional information and documentary material that may be formally or any of informally requested pursuant to the transactions contemplated Antitrust Laws or by this Agreement, such authorities and to use reasonable best efforts to ensure that cause the Acquisition expiration or termination of any applicable waiting periods under the Antitrust Laws and the other transactions contemplated by receipt of the Required Consents as soon as practicable. Notwithstanding anything to the contrary in this Agreement may Agreement, neither Starwood nor Marriott shall be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise required pursuant to minimize the effect of such Legal Requirement on the Acquisition any Antitrust Laws to hold separate (including by seeking trust or otherwise) or divest any of its businesses or assets or enter into any consent decree or other agreement that would restrict it in the conduct of its business as heretofore conducted if such actions, either by themselves or taken together, would reasonably be expected to cause greater than $700 million in lost value to Marriott and its subsidiaries and Starwood and its subsidiaries, taken as a waiver whole. Lost value for purposes of this analysis shall consist of:
(A) any one time out-of-pocket costs that Marriott and its subsidiaries or Starwood and its subsidiaries would incur, if any, to effect a divestment or other required disposition (whether by termination of management or franchise agreement or otherwise) of hotels, whether open or pipeline, by Marriott and its subsidiaries or Starwood and its subsidiaries;
(B) the net present value of the application reasonably expected future fee stream of the management or franchise contract associated with any hotel described in clause (A) from the date of the applicable divestiture or disposition through the earliest date such Legal Requirementcontract could be terminated due to scheduled expiration of the term of such contract, but taking into account any specified term extension where either Marriott or Starwood has the unconditional right to extend (which net present value calculation shall take into account the reasonably expected future selling, general and administrative expenses associated with such contract), using a discount rate equal to Marriott’s weighted average cost of capital as reasonably agreed by Marriott and Starwood; and
(C) a multiple of 12 times the amount of EBITDA earned from owned, leased or joint venture hotels that would be required to be divested or otherwise disposed of by Marriott and its subsidiaries or Starwood and its subsidiaries, if availableany (using EBITDA for 2015 for opened hotels, and projected EBITDA for the third full year of operations for pipeline hotels or hotels that were not open for all of 2015), this Agreement and the transactions contemplated hereby.;
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Marriott International Inc /Md/), Merger Agreement (Starwood Hotel & Resorts Worldwide, 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 conditions of this Agreement, the conditions set forth herein, each of the parties agrees to Company and Parent shall use their reasonable best efforts to take, or cause to be taken, all actions, 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 Applicable Law to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i1) cause the conditions precedent set forth in Article VI preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to be satisfied, (ii) obtain effect all necessary actions or nonactionsFilings and (2) obtaining and maintaining all licenses, waiversauthorizations, permits, consents, approvals, orders clearances, variances, exemptions and authorizations other confirmations required to be obtained from Governmental Entities and the making of all necessary registrations, declarations 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 EntityAuthority or other Third Party that are necessary, (iii) obtain all necessary consents, approvals proper or waivers from third parties, including all Necessary Consents, and (iv) execute or deliver any additional instruments necessary advisable to consummate the transactions contemplated byby this Agreement (which shall include using its reasonable best efforts to contest any (i) action, and suit, investigation or proceeding brought by any Governmental Authority in a federal, state or administrative court challenging, seeking to fully carry out enjoin, restrain, prevent, prohibit or make illegal the purposes ofOffer, this Agreement. In the acceptance for payment of or payment for some or all of the Shares by Parent or Merger Subsidiary or the consummation of the Merger or the other transactions contemplated hereby, or seeking damages or to impose any terms or conditions in connection with the Offer, the Merger or the other transactions contemplated hereby or (ii) order, writ, decree, judgment, award, injunction or ruling that has been entered by a federal, state or administrative court that enjoins, restrains, prevents, prohibits or makes illegal the Offer, the acceptance for payment of or payment for some or all of the Shares by Parent or Merger Subsidiary or the consummation of the Merger or the other transactions contemplated hereby or imposes any damages, terms or conditions in connection with the Offer, the Merger or the other transactions contemplated hereby); provided that the parties hereto understand and without limiting agree that the reasonable best efforts of any party hereto shall not be deemed to include (A) divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking, causing to be taken or refraining from taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its or the Surviving Corporation’s Subsidiaries or any of their respective Affiliates’ businesses, assets or properties, or (B) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby, except, in the case of the preceding clause (A) or (B), to the extent such action or actions would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Board of Directors shallSubsidiaries and Parent and its Subsidiaries, if any takeover statute or similar Legal Requirement is or becomes applicable taken as a whole; provided that, for such purposes, (1) impacts on the synergies expected to be realized from the AcquisitionOffer and the Merger will be taken into account and (2) impacts on Parent, this Agreement the Company or any of their respective Subsidiaries will be aggregated. The Company (x) shall not take or agree to take any action identified in clause (A) or (B) of the transactions contemplated preceding sentence (any such action, a “Burdensome Condition”) without the prior written consent of Parent and (y) if so requested by this AgreementParent, shall use reasonable best efforts to ensure take any Burdensome Condition provided that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable such Burdensome Condition is conditioned on the terms contemplated by this Agreement consummation of the Offer and otherwise does not reduce the Offer Price or the Merger Consideration. Parent and Merger Subsidiary shall not take any action or agree to minimize the effect of such Legal Requirement on the Acquisition take any action (including by seeking acquiring or agreeing to acquire by merging or consolidating with, or by purchasing a waiver substantial portion of the application assets of or equity in, or by any other manner, any business of any Third Party) which is reasonably likely to prevent the obtaining of, any authorization, consent, order, declaration or approval of any Governmental Authority, or expiration or termination of the applicable waiting period under, any Competition Law by the End Date or delay such Legal Requirementobtaining, if available), this Agreement and expiration or termination to a date after the transactions contemplated herebyEnd Date.
Appears in 2 contracts
Sources: Merger Agreement (Shire Pharmaceutical Holdings Ireland Ltd.), Merger Agreement (NPS Pharmaceuticals Inc)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (ia) the taking of all acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as practicable, (iib) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities Authorities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental EntitiesAuthorities, if any) and, subject to the limitations set forth herein, and the taking of all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental EntityAuthority, (iiic) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, parties and (ivd) execute or deliver the execution and delivery of 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 foregoingfirst sentence of this Section 6.03, each of the Company and its the Company Board of Directors shall, if and Parent and the Parent Board shall (i) take no action to cause any state takeover statute or similar Legal Requirement statute or regulation to become applicable to this Agreement, the Merger or any of the other transactions contemplated by this Agreement and (ii) if any state takeover statute or similar statute is or becomes applicable to this Agreement, the Acquisition, this Agreement Merger or any of the other transactions contemplated by this Agreement, use reasonable best efforts take all action reasonably necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on this Agreement, the Acquisition Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or anything else to the contrary in this Agreement, nothing shall be deemed to require Parent to (including by seeking a waiver A) agree to, or proffer to, divest or hold separate any assets or any portion of any business of Parent or any of its Subsidiaries or, assuming the consummation of the application Merger, the Company or any of its Subsidiaries, (B) not compete in any such Legal Requirementgeographic area or line of business, if available)(C) restrict the manner in which, this Agreement and or whether, Parent, the transactions contemplated herebyCompany, the Surviving Corporation or any of their respective Affiliates may carry on business in any part of the world or (D) agree to any terms or conditions that would impose any obligations on Parent or any of its Subsidiaries or, assuming the consummation of the Merger, the Company or any of its Subsidiaries, to maintain facilities, operations, places of business, employment levels, products or businesses.
Appears in 2 contracts
Sources: Merger Agreement (Brookdale Senior Living Inc.), Merger Agreement (American Retirement Corp)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, including Section 5.3(d), each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this AgreementAgreement and to obtain satisfaction of the conditions precedent to the Merger, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consentsclearances, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents(iii) preventing the entry, enactment or promulgation of any injunction or order or Law that could materially and adversely affect the ability of the parties hereto to consummate the transactions under this Agreement, (iv) execute seeking the lifting or deliver rescission of any injunction or order or Law that could materially and adversely affect the ability of the parties hereto to consummate the transactions under this Agreement, (v) cooperating to defend against any proceeding or investigation relating to this Agreement or the transactions contemplated hereby and to cooperate to defend against it and respond thereto, (vi) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement, (vii) using commercially reasonable efforts to arrange for the Company’s independent accountants to provide such comfort letters, consents and other services that are reasonably required in connection with Parent’s financings of the Cash Consideration and (viii) assisting in the marketing and sale or any other syndication of any such financings by making appropriate officers of the Company available for due diligence meetings and for participation in the road show and meetings with prospective participants in such financings upon reasonable notice and at reasonable times, provided, that in the case of clauses (vii) and (viii), Parent shall promptly reimburse the Company for all out-of-pocket expenses incurred by, and otherwise indemnify and hold harmless, the Company, its Affiliates and its and their respective officers, directors, accountants and representatives from and against all liabilities, relating to such actions other than those arising from such person’s willful misconduct or gross negligence. For purposes of this Agreement, reasonable best efforts shall not require the parties to (i) sell, hold separate or otherwise dispose of or conduct the business of the Company, Parent and/or any of their respective affiliates in a manner which would resolve such objections or suits, (ii) agree to sell, hold separate or otherwise dispose of or conduct the business of the Company, Parent and/or any of their respective affiliates in a manner which would resolve such objections or suits, (iii) permit the sale, holding separate or other disposition of, any of the assets of the Company, Parent and/or any of their respective affiliates or the execution of any agreement or order to do so, and (iv) conduct the business of the Company, Parent and/or any of their respective affiliates in a manner which would resolve such objections or suits, except to the extent any such action described in clauses (i) through (iv) would not reasonably be expected to materially impair the benefits each of Parent and the Company reasonably expects to be derived from the combination of Parent and the Company through the Merger. In connection with furtherance and without limiting not in limitation of the foregoing, each of Parent and the Company and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable agrees to the Acquisition, this Agreement or any of make an appropriate filing under HSR with respect to the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition and the other transactions contemplated by this Agreement may be consummated hereby as promptly as practicable on and in any event within 20 Business Days following the terms contemplated by this Agreement date hereof and otherwise to minimize supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the effect of such Legal Requirement on HSR Act and to take all other actions necessary to cause the Acquisition (including by seeking a waiver expiration or termination of the application of any such Legal Requirement, if available), this Agreement and applicable waiting periods under the transactions contemplated herebyHSR Act as soon as practicable.
Appears in 2 contracts
Sources: Merger Agreement (Alpha Natural Resources, Inc.), Merger Agreement (Cleveland Cliffs 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 set forth hereinprovided in this Agreement, each of the parties agrees to use its reasonable best efforts to taketake promptly, or cause to be taken, all actions, actions and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using its reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfiedobtain all necessary waivers, consents and approvals, and (ii) obtain to effect all necessary actions registrations and filings, subject, however, to Company Stockholder Approval (as defined in Section 4.6 hereof). In case at any time after the Effective Time any further action is necessary or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject desirable 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, obligations of the parties under this Agreement. , the proper officers and/or directors of Parent, the Purchaser and the Company, as the case may be, shall take the necessary action.
(b) In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation, in each case as the same is in effect on the date hereof, is or becomes applicable to the AcquisitionOffer, the Merger, this Agreement, the Stockholders Agreement or any of the other transactions contemplated by this Agreement or the Stockholders Agreement and (ii) if any such state takeover statute or similar statute or regulation becomes applicable to the Offer, the Merger, this Agreement, use reasonable best efforts the Stockholders Agreement or any other transaction contemplated by this Agreement or the Stockholders Agreement take all action necessary to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement and the Stockholders Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Stockholders Agreement and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition (including Merger and the other transactions contemplated by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyStockholders Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Defiance Inc), Merger Agreement (General Chemical Group 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 conditions of this Agreement (including Section 6.5(d)), prior to the conditions set forth hereinClosing, each of Parent and the parties agrees to Company shall use their respective reasonable best efforts to take, or cause to be taken, all reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all reasonable things necessary, proper or advisable under any applicable Laws to consummate and make effectiveeffective the Merger as promptly as practicable, as expeditiously as possible after including (i) the date hereof 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 event before 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 Termination Date)HSR Act and the Competition Act, to the extent necessary, proper or advisable) required to be obtained or made by Parent, Merger Sub, the Acquisition and Company or any of their respective Subsidiaries in connection with the other transactions Merger or the taking of any action contemplated by this Agreement, including by (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: to obtain (iand to cooperate with each other in obtaining) cause the conditions precedent set forth any consent, approval of, waiver or any exemption by, any non-governmental third party, in Article VI to be satisfiedeach case, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth hereinextent necessary, proper or advisable in connection with 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 ConsentsMerger, and (ivvi) execute or deliver the execution and delivery of any reasonable additional instruments necessary to consummate the transactions contemplated by, 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 the Merger, and (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. In No party shall participate in any substantive meeting with any Governmental Entity in connection with this Agreement and without limiting the foregoingMerger 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 its Board of Directors shalltheir respective counsel dated July 19, if 2016, Parent and the Company may, as each deems advisable and necessary, reasonably designate any takeover statute or similar Legal Requirement is or becomes applicable competitively sensitive material provided to the Acquisition, other under this Agreement or any 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 transactions contemplated 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 AgreementSection 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 ensure make or file with the appropriate Governmental Entity all filings, forms, registrations and notifications required to be filed to consummate the 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 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 date 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 Acquisition 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) 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 transactions 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, or commit to take, or commit to cause to be taken, any divestiture, license, hold separate, sale or other disposition (A) that would constitute a Triggering Divestiture or (B) of, or with respect to, Parent’s “CINTAS” trademark or trade name.
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.5, 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 may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect violative of such Legal Requirement on the Acquisition (including by seeking a waiver any Antitrust Law, each of the application of Company and Parent shall use reasonable best efforts to contest and resist any such Legal Requirementaction or proceeding and to have vacated, if available)lifted, this Agreement 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 herebyMerger; provided, that Parent shall bear all costs and expenses associated with contesting or resisting any such action or proceeding.
Appears in 2 contracts
Sources: Merger Agreement (G&k Services Inc), Merger Agreement (Cintas Corp)
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 set forth hereinof this Agreement, each of the parties agrees to Controlling Partnership and the Seller shall use its reasonable best efforts to take, or cause to be taken, all actions, 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 to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause ensure that the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders Section 7 of this Agreement are satisfied and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement as promptly as practicable, including using its reasonable best efforts to (i) obtain (and to cooperate with the other party to obtain) any consent, authorization, order or approval of, or any exemption by, and any Governmental Entity or any third party which is required to fully carry out the purposes of, this Agreement. In be obtained 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, transactions contemplated by this Agreement from Governmental Entities or third parties and (ii) making all registrations, notifications and filings with any Governmental Entity or any of third party that are required to be made in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, use reasonable best efforts nothing in this Agreement shall be deemed to ensure require the Controlling Partnership or the Seller to take, or agree to take, any action if the taking of such action would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Purchaser (after giving effect to the Restructuring Transactions, but excluding the Acquired Partnership and its subsidiaries) or the Seller, as applicable. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to require the Controlling Partnership or any of its affiliates to take any action that would require the Acquisition Controlling Partnership or any of its affiliates to become subject to regulation under the Investment Company Act.
(b) Each of the Controlling Partnership and the Seller shall in connection with the efforts referenced in Section 5.2(a) (i) promptly cooperate with and furnish information to the other transactions contemplated in connection with any action required to be taken pursuant to Section 5.2(a), and (ii) permit the other to review any communication given by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement it to, and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application consult with each other in advance of any meeting or conference with, any Governmental Entity in connection with the foregoing, and to the extent permitted by law, give the other the opportunity to attend and participate in such Legal Requirement, if available), this Agreement meetings and the transactions contemplated herebyconferences.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (KKR & Co. L.P.), Purchase and Sale Agreement (KKR & Co. L.P.)
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 5.2 and Section 5.7 hereof, 5.3 hereof and upon the other terms and subject to the conditions set forth herein, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute the defending of any suits, claims, actions, investigations or deliver proceedings, whether judicial or administrative, 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, and (v) the execution or delivery of 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 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Probusiness Services Inc), Merger Agreement (Automatic Data Processing Inc)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of Solera and the parties agrees to Seller Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the such other parties hereto in doing, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (ia) cause the conditions precedent to the Closing set forth in Article VI ARTICLE V to be satisfied, ; (iib) obtain all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders and authorizations from Governmental Entities Authorities and the making of make all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental EntitiesAuthorities, 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 (iv) execute or deliver any additional instruments that are necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In ; and (c) obtain all necessary or appropriate consents, waivers and approvals under any Company Material Contracts 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 and the consummation of the transactions contemplated hereby so as to maintain and preserve the benefits under such Company Material Contracts following the consummation of the transactions contemplated by this Agreement. In addition to the foregoing, use reasonable best efforts neither Solera nor any Seller Party shall take any action, or fail to ensure take any action, that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise is intended to minimize have the effect of preventing, impairing, delaying or otherwise adversely affecting the consummation of the Closing or the ability of such Legal Requirement on party to fully perform its obligations under this Agreement. Notwithstanding anything to the Acquisition contrary herein, none of WCAS, WCAS SRS, the Company or any of the Company’s Subsidiaries shall be required to pay any consent or other similar fee, “profit sharing” or other similar payment or other consideration (including by seeking a waiver of increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers ‑18‑ of) the application existing terms of any such Legal RequirementContract) to obtain the consent, if available), this Agreement and the transactions contemplated herebywaiver or approval of any Person under any Contract.
Appears in 2 contracts
Sources: Recapitalization Agreement, Recapitalization Agreement (Solera Holdings, Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things actions that are necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this AgreementTransactions, including by including, without limitation, using reasonable best efforts toto accomplish the following: (i) cause the conditions precedent set forth obtain all required consents, approvals or waivers from, or participation in Article VI to be satisfiedother discussions or negotiations with, third parties; (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders Orders and authorizations from Governmental Entities and the making of Authorities, make all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of take all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suitcommencement or proposed or threatened commencement of any investigation, claim, action, investigation litigation or administrative or judicial action or proceeding by under Antitrust Laws with respect to the Transactions (“Antitrust Proceedings”) by, any Governmental Entity, Authority; (iii) obtain all necessary consents, approvals or waivers from third partiesvigorously resist and contest any Action, including any Antitrust Proceeding, and seek to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the Transactions, including, without limitation, by vigorously pursuing all Necessary Consents, avenues of administrative and judicial appeal; and (iv) execute or and deliver any additional instruments necessary to consummate the transactions contemplated byTransactions, and fully to fully carry out the purposes of, of this Agreement. In ; 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.
(b) In furtherance and without limiting not in limitation of the foregoing: (i) each party hereto agrees to (A) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act, if applicable, with respect to the Transactions as soon as practicable and in any event within thirty (30) Business Days after the date hereof (unless the parties otherwise agree to a different date), (B) supply as soon as practicable any additional information and documentary material that may be requested pursuant to the HSR Act or pursuant to any civil investigation demand, subpoena or similar request from the Federal Trade Commission or Department of Justice, and (C) use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 5.4 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable and (ii) each party agrees to use its reasonable best efforts to take or cause to be taken all actions consistent with this Section 5.4 as necessary to obtain any other necessary Permit or other actions or nonactions from each Governmental Authority as soon as practicable. For the avoidance of doubt, obligations relating to “reasonable best efforts” and “as soon as practicable” in this Section 5.4 shall, among other things, mean using reasonable best efforts to be prepared to complete a certification of compliance with any request for additional information issued by the Department of Justice or Federal Trade Commission in connection with the Transactions (“Second Request”) as soon as practicable.
(c) Each of the Company and Parent 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 Laws and reasonable guidance from each party’s antitrust counsel 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 filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection with the Transactions.
(d) Subject to applicable Laws, the instructions of any Governmental Authority and reasonable guidance from each party’s antitrust counsel relating to the exchange of information, the Company and its Board Parent shall keep each other reasonably apprised of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable the status of matters relating to the Acquisitioncompletion of the Transactions and the Precedent Transaction, including promptly informing the other of, and/or furnishing the other with copies of, notices or other material communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Authority and/or third party with respect to such transactions.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 5.1(b), nothing in this Agreement shall require, or be deemed to require, Parent or Merger Sub to agree to or effect (i) any direct or indirect sale, charter (in whole or any portion), lease, change or limitation in operation, divestiture, license, holding separate or other disposition of any Vessel (whether or not acquired hereunder); (ii) any action that would reasonably be expected to impair the value of the Transactions to Parent in any material respect; or (iii) any action that would reasonably be expected to have any adverse effect on Parent’s (or any of its Subsidiaries’) existing assets or businesses as conducted as of the date of this Agreement or any as of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyClosing Date.
Appears in 2 contracts
Sources: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement (including Section 6.2), each of the parties agrees to shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner reasonably practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this AgreementTransactions, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations using all reasonable best efforts to cause the pre-merger notifications required under the HSR Act to be filed within seven business days after the date hereof and including other filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain 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, including all Necessary Consents, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Transactions and to fully carry out the purposes ofof this Agreement; provided, however, that Parent shall not be required to consent to any action described in paragraph (a) of Annex 1 to this Agreement. In connection with and without limiting the foregoing, Parent, Sub, the Company and its the Company Board of Directors shall, if any shall (A) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the Acquisition, any Transaction or this Agreement and (B) if any state takeover statute or any of the transactions contemplated by similar statute or regulation becomes applicable to this Agreement, use reasonable best efforts take all action necessary to ensure that the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition Offer, the Merger and the other Transactions.
(including by seeking a waiver b) The Company shall give prompt notice orally and in writing to Parent, and Parent or Sub shall give prompt notice orally and in writing to the Company, of any failure of any condition to the Offer set forth in Annex 1 or any condition to the Merger set forth in Article 8; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the application parties or the conditions to the obligations of any such Legal Requirement, if available), the parties under this Agreement and the transactions contemplated herebyAgreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sapphire Expansion CORP), Merger Agreement (Retek Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties Parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto Party in doing, all things that are necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this AgreementTransactions, including by using its reasonable best efforts toto accomplish the following: (i) cause the conditions precedent set forth obtain all required consents, approvals or waivers from, or participation in Article VI to be satisfiedother discussions or negotiations with, third parties, including as required under any Parent Material Contract or Company Material Contract (as applicable); (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of Entities, make all necessary registrations, declarations and filings (including registrationsand make all reasonable best efforts to obtain all approvals or waivers from, 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 or to avoid any suitAction by, claim, action, investigation or proceeding 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) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, execute and (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, Transactions and fully to fully carry out the purposes of, of this 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 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 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 connection with exercising the foregoing rights, each of Parent and without limiting the foregoing, the Company shall act reasonably and its Board as promptly as practicable. Subject to applicable Law and the instructions of Directors shallany Governmental Entity, if any takeover statute or similar Legal Requirement is or becomes applicable Parent and the Company shall keep one another reasonably apprised of the status of matters relating to the Acquisitioncompletion of the Transactions, this Agreement including promptly furnishing the other with copies of notices or other written communications received by Parent and the Company, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to the transactions contemplated by this AgreementTransactions, use reasonable best efforts and, to ensure that the Acquisition and extent practicable under the circumstances, shall provide the other transactions contemplated by this Agreement may be consummated as promptly as practicable on Party and its counsel with the terms contemplated by this Agreement opportunity to participate in any 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 and otherwise all action necessary, including (i) agreeing or proffering to minimize divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the effect assets or businesses of such Legal Requirement on Parent or the Acquisition Company or any of their respective Affiliates or, assuming the consummation of the Mergers, the Surviving Company or any of its Affiliates, (ii) agreeing or proffering to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.shares of
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, 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 set forth hereinof this Agreement, each of the parties agrees to Party will use its reasonable best efforts to take, or cause to be taken, all actions, 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 applicable Laws to achieve the satisfaction of the conditions contemplated by Article VIII and to consummate the Acquisition and make effectiveeffective the Transactions, as expeditiously promptly as possible practicable after the date hereof, including using reasonable best efforts in (i) preparing and filing, in consultation with the other Parties and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary or advisable 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, approvals, permits and authorizations necessary or advisable to be obtained from any third party or any Governmental Entity in order to consummate the Acquisition or any of the other Transactions, (ii) the obtaining of all necessary actions or non-actions, waivers, consents, orders, authorizations and approvals from Governmental Entities, including any required action or non-action from the applicable Governmental Entities under the Antitrust Laws, Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued and effective thereunder (the “DPA”), Foreign Investment Laws, or other Laws related to the Regulatory Clearances, including the consents, clearances, authorizations and approvals as set forth on Section 8.1(b) of the Danube Disclosure Letter, and (iii) the contesting and defending of any Proceedings challenging this Agreement or the consummation of the Acquisition or any of the other Transactions, including (A) seeking to have any stay or temporary restraining order (or other Order) entered by any court or Governmental Entity vacated, reversed or terminated and (B) defending through litigation on the merits any claim asserted in court by any Person to avoid entry of, or to have vacated, reversed or terminated, any Order (whether temporary, preliminary or permanent) that would restrain or prevent the Closing from occurring prior to the Outside Date. In furtherance and not in limitation of the foregoing, each Party agrees to make, as promptly as reasonably practicable (but, with respect to the following clause (I), no later than fifteen (15) Business Days from the date hereof or by such later time to be mutually agreed in good faith by the Parties in order to cause the expiration or termination of the waiting period under the HSR Act to occur as promptly as reasonably practicable), (I) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, (II) a joint voluntary notice with CFIUS in accordance with the DPA (“CFIUS Notice”), (III) any filing, notification, submission or report required or advisable pursuant to non-U.S. Antitrust Laws, including the jurisdictions set forth on Section 10.5(d) of the Amazon Disclosure Letter, (IV) appropriate filings, notifications, submissions or reports, if any are required or voluntarily submitted, pursuant to the Foreign Investment Laws, including the jurisdictions set forth on Section 10.5(e) of the Amazon Disclosure Letter and (V) appropriate filings, notifications, submissions or reports related to the Canada Transportation Act and all other Regulatory Clearances. The Parties also agree that if CFIUS suggests or requests that the Parties withdraw and resubmit the CFIUS Notice submitted to CFIUS, the Parties shall cooperate in withdrawing and resubmitting the CFIUS Notice.
(b) Each Party shall (i) cooperate in all material respects and consult with each other in connection with any filings, notifications, communications, submissions and any other action pursuant to this Section 7.3(b) or Section 7.3(c) and in connection with any investigation or other inquiry, including any Proceeding initiated by a private party, including by allowing the other Parties to have a reasonable opportunity to review in advance and provide comments consistent with the Parties’ joint cooperation and consultation obligations under Section 7.3(d) with respect to any proposed notifications, filings, submissions or other written or oral communications to be submitted or made, as the case may be, by any Party or their respective Affiliates to any Governmental Entity or private party; (ii) promptly inform the other Parties of any communication, inquiry or investigation received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), CFIUS or any other Governmental Entity, by promptly providing copies to the other Parties of any such written communications, and of any communication received or given in connection with any Proceeding by a private party, in each case regarding any of the Transactions; provided, however, that materials may be redacted or withheld (A) to remove references concerning the valuation of the Parties or any of their Subsidiaries, (B) as necessary to comply with contractual arrangements in effect as of the date hereof and (C) as necessary to address reasonable privilege or confidentiality concerns (collectively, “Permitted Redactions”); and (iii) permit the other Parties to review in advance any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with, the DOJ, the FTC, CFIUS or any other Governmental Entity, or, in connection with any Proceeding by a private party, with any other Person, subject in each case to Permitted Redactions, and to the extent permitted by the DOJ, the FTC, CFIUS or any other applicable Governmental Entity or other Person, give the other Parties the opportunity to attend and participate in any meeting, telephone call or conference with the DOJ, the FTC, CFIUS or any other Governmental Entity or other Person. Each Party shall promptly respond to and comply with any request, requirement or demand for information, documents or testimony regarding the Transactions from any Governmental Entity (including responding to any “second request” for additional information and documentary material under the HSR Act) as promptly as practicable. Each of Amazon, Sellers and Danube may, as such Party deems necessary, designate any competitively sensitive material provided to any other Party under this Section 7.3(b) or Section 7.2 as “outside counsel only” material. Such materials and the information contained therein shall be given only to the outside counsel of the recipient and, subject to the Clean Team Agreement and 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 written permission is obtained in advance from the source of the materials (Amazon or Danube, as the case may be) or its legal counsel.
(c) In furtherance and not in limitation of the covenants of the Parties contained in this Section 7.3(c), each Party shall use its reasonable best efforts to take, or to cause to be taken, any and all actions necessary to avoid, eliminate and resolve any and all impediments and resolve objections, if any, as may be asserted with respect to the Transactions under any Antitrust Law or the DPA, Foreign Investment Laws or other Laws related to the Regulatory Clearances, so as to enable the Closing to occur as promptly as practicable (and in any event before event, no later than the Termination Outside Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause proposing, negotiating, committing to and effecting by consent decree, hold separate orders, or otherwise, the conditions precedent set forth sale, divestiture, transfer, license or disposition or hold separate of the assets (whether tangible or intangible), properties, operations, licenses or businesses of Danube or Amazon or any of their respective Subsidiaries and (ii) accepting any operational restrictions or otherwise taking or committing to take actions that limit Danube’s, Amazon’s or any of their respective Subsidiaries’ freedom of action with respect to any of the assets, properties, licenses, rights, product lines, operations or businesses (such actions, “Remedial Actions”); provided, however, no Party shall be required to take, and neither Danube nor Sellers shall take without the prior written consent of Amazon, such Remedial Actions under this Section 7.3(c) that would result in, or would be reasonably likely to result in, the sale or disposition of assets or businesses or the termination of or restriction on any business of Danube or Amazon or their respective Subsidiaries (in Article VI any jurisdiction(s)) meeting or exceeding the Remedy Threshold. Notwithstanding anything to be satisfiedthe contrary in this Section 7.3, the Parties other than Amazon (x) shall not, without the prior written consent of Amazon, and (y) shall, if requested in writing by Amazon, offer, negotiate, commit to, effect, enter into or take any Remedial Action; provided, that, notwithstanding anything in this Agreement to the contrary, none of the Parties shall have any obligation to take, or propose or agree to take, any Remedial Action (i) unless the effectiveness of such Remedial Action is expressly conditioned upon the Closing or (ii) that involves the assets, properties or rights of any Seller or any Affiliates of any Seller other than Danube and Danube’s Subsidiaries.
(d) The Parties shall jointly develop, and control, and each of the Parties shall consult and cooperate with one another with respect to (i) the strategy, timing and form for obtaining any necessary approval of, for responding to any request from, or inquiry or investigation by, any Governmental Entity that has authority to enforce any Antitrust Law or any Law related to any other Regulatory Clearance (including directing the timing, nature and substance of all such responses, including any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with the subject matter of this Section 7.3(d)), (ii) the strategy, scope, timing, form, negotiation and execution of any Remedial Action required by any Governmental Entity that has authority to enforce any Antitrust Law or any Law related to any other Regulatory Clearance and (iii) the defense of any action brought by or before any Governmental Entity that has authority to enforce any Antitrust Law; provided, however, that in the event of a disagreement between the Parties with respect to the matters described in the foregoing clause (ii), the determination of Amazon shall prevail. In furtherance of and not in limitation of the foregoing, no Party shall (and each of them shall cause their respective Affiliates not to) without the prior written consent of the other Parties, (A) “pull-and-refile”, pursuant to 16 C.F.R. § 803.12, any filing made under the HSR Act in connection with the Transactions or (B) offer, negotiate or enter into any commitment or agreement, including any timing agreement, with any Governmental Entity to delay the consummation of, or not to close before a certain date, the Transactions.
(e) Subject to Section 7.3(c), each Party shall use its reasonable best efforts to obtain the expiration or termination of all necessary waiting periods and all consents, waivers, authorizations and approvals of all third parties (other than Governmental Entities) necessary, proper or advisable for the consummation of the Transactions and to provide any notices to third parties required to be provided prior to the Closing; provided, however, that, without the prior written consent of the other Parties, no Party shall 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 from third parties (other than Governmental Entities).
(f) Each of Danube and Amazon shall not, and shall not permit their respective Subsidiaries to, take any action, or refrain from taking any action, the effect of which could reasonably be expected to materially delay or impede the ability of the parties to consummate the Transactions. Without limiting the generality of the foregoing, each of the Parties shall not, and shall not permit their respective Affiliates to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any actions or nonactions, waivers, consentsclearances, approvalsexpirations or terminations of waiting periods, orders and authorizations consents or approvals from Governmental Entities and necessary, proper or advisable to consummate the making Transactions, (ii) increase the risk of all necessary registrations, declarations 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 EntityEntity issuing, entering, adopting, enacting or promulgating any Law restraining, enjoining, prohibiting, preventing or making illegal the consummation of the Transactions, (iii) obtain all necessary consents, approvals increase the risk of not being able to remove any such Law on appeal or waivers from third parties, including all Necessary Consents, and otherwise or (iv) execute materially delay or deliver any additional instruments necessary prevent the consummation of the Transactions; provided, that this Section 7.3(f), (A) with respect to consummate Affiliates of Seller C, shall only apply to the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company CPPIB Restricted Party and its Board controlled Affiliates and (B) with respect to Affiliates of Directors shallSeller B, if any takeover statute or similar Legal Requirement is or becomes applicable shall only apply to the Acquisition, this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition BCI Restricted Party 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyits controlled Affiliates.
Appears in 2 contracts
Sources: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable advisable, to consummate and make effective, as expeditiously soon as possible after the date hereof (and in any event before the Termination Date)reasonably practicable, the Acquisition Amalgamation and the other transactions contemplated by this Agreement, including by using reasonable best efforts including, but not limited to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrationswith, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all other reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity; (ii) the obtaining, (iii) obtain of all necessary consents, approvals or waivers from third partiespersons other than Governmental Entities; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Parent Ancillary Agreements and HIIC Ancillary Agreements, or the consummation of the transactions contemplated hereby or thereby, including all Necessary Consents, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In connection with and without limiting .
(b) Each party hereto shall use its reasonable best efforts not to take any action, or to enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or to result in a breach of any of its covenants in this Agreement.
(c) Notwithstanding any provision in this Agreement to the foregoing, contrary neither Parent nor HIIC shall be obligated to use its reasonable best efforts or to take any action (or omit to take any action) pursuant to this Agreement if the Company and its Board of Directors shallof Parent or HIIC, if any takeover statute or similar Legal Requirement is or becomes applicable to as the Acquisitioncase may be, this Agreement or any shall conclude in good faith on the basis of the transactions contemplated by this Agreement, use reasonable best efforts to ensure advice of its outside counsel that such action would be inconsistent with the Acquisition 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 fiduciary obligations of such Legal Requirement on the Acquisition (including by seeking a waiver Board of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyDirectors under applicable law.
Appears in 2 contracts
Sources: Plan and Agreement of Merger and Amalgamation (Harrahs Entertainment Inc), Merger Agreement (Sky Games International LTD)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously soon as possible after following the date hereof (and in any event before the Termination Date)hereof, the Acquisition Mergers and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: in (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities 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, declarations registrations 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 obtain a Required Consent from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers waivers, and any necessary or appropriate financing arrangements, from third parties, (iii) the contesting and 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 all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement, and (v) refraining from taking any action that would reasonably be expected to impede, interfere with, prevent or materially delay the consummation of the Mergers. In connection with furtherance and without limiting 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 Company and its Board of Directors shallHSR Act with respect to the transactions contemplated hereby as promptly as practicable, (ii) appropriate filings, if any takeover statute or similar Legal Requirement is or becomes applicable are required, pursuant to foreign Antitrust Laws as promptly as practicable and (iii) all other necessary filings with other Governmental Entities relating to the AcquisitionMerger, 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 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. The parties agree that the use of “reasonable best efforts” in this Agreement Section 6.3 shall include proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, (x) the sale, divestiture or disposition of such assets or businesses of either party or its Subsidiaries or affiliates and (y) restrictions, or actions that after the Effective Time would limit HoldCo’s or its subsidiaries’ or affiliates’ freedom of action or operations with respect to, or its ability to retain, one or more of its or its subsidiaries’ businesses, product lines or assets, in each case (A) 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 contemplated by this AgreementAgreement and (B) conditioned upon the consummation of the Mergers.
(b) The parties shall jointly develop, use reasonable best efforts and each of the parties shall consult and cooperate in all respects with one another, and consider in good faith the views of one another, in connection with 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 ensure that any Antitrust Law prior to their submission. Each of the Acquisition and parties shall (i) promptly notify the other transactions contemplated 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 party to review in advance any proposed communication to any such Governmental Entity and incorporate the other party’s reasonable comments, (ii) not agree to participate in any meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement may be consummated as or the Mergers unless, to the extent reasonably practicable, 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 therein and (iii) promptly as practicable furnish the other party with copies of all correspondence, filings and written communications between them and their affiliates and their respective officers, directors, employees and Representatives, on one hand, and any such Governmental Entity or its respective staff on the terms contemplated by this Agreement and otherwise other hand, with respect to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyMerger 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 Section 6.3(b) may be redacted as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dow Chemical Co /De/)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity or any Restraint (as defined in Section 6.1(b)) vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Nothing set forth in this Section 5.2(a) will limit or affect actions permitted to be taken pursuant to Section 4.2.
(b) In connection with and without limiting the foregoing, the Company CAX and its Board of Directors shall, if any AIC shall use reasonable best efforts (i) to take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation (other than Section 251, et seq. of the DGCL) is or becomes applicable to the Acquisition, this Agreement or the Merger or any of the other transactions contemplated by hereby or thereby and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this AgreementAgreement or the Merger or any other transaction contemplated hereby or thereby, use reasonable best efforts to take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition Merger and the other transactions contemplated by this Agreement.
(including by seeking a waiver c) Each of CAX and AIC shall cooperate with each other in obtaining the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated as of the application Effective Time, to the effect that the Merger will constitute a reorganization within the meaning of any Section 368(a) of the Code. In connection therewith, each of CAX and AIC shall deliver to such Legal Requirement, if availablecounsel customary representation letters in form and substance reasonably satisfactory to such counsel (the representation letters referred to in this sentence are collectively referred to as the "Tax Certificates"), this Agreement and the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Asset Investors Corp), Merger Agreement (Commercial Assets Inc)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of Parent, Merger Sub and the parties agrees to Company shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing, all things reasonably necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof most expeditious manner practicable, the transactions contemplated hereby (and in any event before including the Termination DateMerger), the Acquisition and the other transactions contemplated by this Agreement, including by using its reasonable best efforts to: to (i) cause the conditions precedent to the Merger set forth in Article VI that are within their respective control to be satisfiedsatisfied or fulfilled, including by filing as promptly as practicable after the date hereof with the SEC all 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 this Agreement and the consummation of the transactions contemplated hereby (including the 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 and the consummation of the transactions contemplated hereby (including the Merger), and obtain all necessary actions or nonactionsnon-actions, waivers, clearances, consents, approvals, orders and authorizations from Governmental Entities Authorities (including under all Antitrust Law) in connection with this Agreement and the making consummation of all necessary registrations, declarations and filings the transactions contemplated hereby (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 Merger); (iv) execute or and deliver any additional instruments reasonably necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with 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 limiting the foregoinglimitation, the Company 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 Board grant of Directors shalla consent (including by threatening to exercise a “recapture” or other termination right) upon, if any takeover statute or similar Legal Requirement is otherwise requires in response to a notice or becomes applicable to the Acquisition, this Agreement or any of consent request regarding the transactions contemplated by this AgreementAgreement (including the Merger), use reasonable best efforts to ensure that the Acquisition 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 providing all such additional security and the other transactions contemplated by this Agreement may terms thereof shall be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise subject to minimize the effect of such Legal Requirement on the Acquisition Parent’s approval (including by seeking a waiver of the application of any such Legal Requirementwhich approval shall not be unreasonably withheld, if availabledelayed or conditioned), this Agreement and the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Market Leader, Inc.)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, including without limitation Section 4.2 hereof, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation or vigorously defend an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act and State Takeover Approvals), (iiiii) obtain 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, the Stock Option Agreement or the consummation of the transactions contemplated hereby and thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Prior to and following the Effective Time, each party shall use all reasonable best efforts to refrain from taking any action or failing to take any action, which action or failure to act would cause, or would be reasonably likely to cause, the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.
(d) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by this Agreementbusinesses, product lines or assets of Parent or any of its Subsidiaries or that otherwise would have a Material Adverse Effect on Parent.
(e) The Company will use its reasonable best efforts to ensure that cause the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver persons listed in Section 5.7(e) of the application of any such Legal RequirementCompany Letter to execute and deliver retention, if available), this Agreement employment or consulting agreements in form and substance reasonably satisfactory to the transactions contemplated herebyParent.
Appears in 2 contracts
Sources: Merger Agreement (General Electric Co), Merger Agreement (Lunar Corp)
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 conditions of this Agreement, the conditions set forth herein, each of the parties agrees to Company and Parent shall use their respective reasonable best efforts to take, or cause to be taken, all actions, 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 Applicable Law to consummate and make effective, the transactions contemplated by this Agreement as expeditiously promptly as possible practicable after the date hereof and in no event later than the End Date, including (i) the obtaining of all necessary actions or non-actions, waivers, consents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any), (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties (provided that the Company shall not be obligated to make any payment or commercial concession to any Third Party, or incur any liability, as a condition to (or in connection with) obtaining any such consent or waiver, unless such payment, concession or liability is requested by Parent and is conditioned and effective only upon the Closing), and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, Parent’s and Merger Sub’s obligations under this Agreement (including this Section 6.12) are subject to, and the parties hereto agree to, the terms and conditions set forth on Section 6.12(a) of the Parent Disclosure Schedule, and Parent and Merger Sub shall not be in breach of this Agreement to the extent Parent or Merger Sub relies on or acts in accordance with the limitations set forth in Section 6.12(a) of the Parent Disclosure Schedule.
(b) In furtherance and not in limitation of the foregoing, each of the Company and Parent (and their respective Affiliates, if applicable) shall: (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all notices, reports and other documents required to be filed by such party under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement; provided that if there are any changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, then the Company and Parent shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as commercially practicable thereafter; (ii) except as otherwise set forth in Section 6.12(b) of the Company Disclosure Schedule, promptly, but in no event before later than twenty (20) Business Days after the Termination Datedate hereof, make all filings necessary to timely obtain all consents, permits, authorizations, waivers, clearances and approvals, and shall cause the expiration or termination of any applicable waiting periods, as may be required under the Antitrust Laws or Foreign Investment Laws of the jurisdictions set forth on Section 7.01(c) of the Company Disclosure Schedule (to the extent required or advisable), ; and (iii) as promptly as reasonably practicable provide such information as may reasonably be requested by the Acquisition U.S. Department of Justice (the “DOJ”) or the Federal Trade Commission (the “FTC”) under the HSR Act or by any other Governmental Authority under applicable Antitrust Laws or Foreign Investment Laws in connection with the Merger and the other transactions contemplated by this Agreement, including as well as any information required to be submitted to comply with a request for additional information in order to commence or end a statutory waiting period. Parent shall pay all filing fees under the HSR Act and other applicable Antitrust Laws or Foreign Investment Laws, and the Company shall not be required to pay any fees or other payments to any Governmental Authority in connection with any filings under the HSR Act or such other filings as may be required under applicable Antitrust Laws, in connection with the Merger or the other transactions contemplated by using this Agreement.
(c) Without limiting the generality of anything contained in this Section 6.12, each party hereto shall use reasonable best efforts to: (i) cause give the conditions precedent set forth in Article VI other parties prompt notice of the making or commencement of any substantive request, inquiry or Proceeding by any Governmental Authority with respect to be satisfied, the Merger and the other transactions contemplated by this Agreement; (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and keep the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject other parties reasonably informed as to the limitations set forth hereinstatus of any such request, the taking of all steps and remedies as may be necessary to avoid any suit, claim, action, investigation inquiry or proceeding by any Governmental Entity, Proceeding; (iii) obtain all necessary consentspromptly inform the other parties of any substantive communication to or from the FTC, approvals DOJ or waivers from third parties, including all Necessary Consents, and (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 other Governmental Authority to the Acquisition, this Agreement or any of extent regarding the Merger and the other transactions contemplated by this Agreement, use reasonable best efforts or regarding any such request, inquiry or Proceeding, and provide a copy of all substantive written communications; and (iv) in the case of Parent, pull and re-file any notice under the HSR Act only after consulting in good faith with the other party. Subject to ensure Applicable Law, in advance and to the extent practicable, each of Parent or the Company, as the case may be, will consult the other on all the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries that appear in any filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection with the Acquisition Merger and the other transactions contemplated by this Agreement and shall consider in good faith all comments reasonably proposed by Parent or the Company, as the case may be; provided, however, that either party may limit access to information solely to those individuals acting as outside antitrust counsel for the other parties (provided that such counsel shall not disclose such information to such other parties and shall enter into a joint defense agreement with the providing party). In addition, except as may be consummated prohibited by any Governmental Authority or by any Applicable Law, in connection with any such request, inquiry or Proceeding in respect of the Merger and the other transactions contemplated by this Agreement, each party hereto will permit authorized Representatives of the other party to be present at each substantive meeting or conference relating to such request, inquiry or Proceeding and to have access to and be consulted in connection with any substantive document, opinion or proposal made or submitted to any Governmental Authority in connection with such request, inquiry or Proceeding.
(d) In furtherance and not in limitation of the foregoing, ▇▇▇▇▇▇ agrees to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under the Antitrust Laws that may be required by any Governmental Authority, so as promptly to enable the parties hereto to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable on (and in any event no later than the terms End Date), including (i) committing to or effecting, by consent decree, hold separate order, trust, or otherwise, the sale, divestiture, license, transfer, assignment or other disposition of assets or businesses of the Company or its Subsidiaries and controlled Affiliates, (ii) terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, licenses, collaborations, relationships, ventures, contractual rights, obligations or other arrangements of the Company or its Subsidiaries and controlled Affiliates and (iii) creating or consenting to create or enter into any agreements, licenses, collaborations, relationships, ventures, contractual rights, obligations, behavioral undertakings or other arrangements (and, in each case, to enter, or offer to enter, into agreements and stipulate to the entry of an Order or file appropriate applications with any Governmental Authority in connection with any of the foregoing and in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets, by consenting to such action by the Company; provided, however, that any such action may, at the discretion of the Company, be conditioned upon consummation of the Merger and the other transactions contemplated by this Agreement) (each action contemplated by clauses (i) through (iii) a “Specified Action”). Parent and the Company shall cooperate in any proposal, negotiation, or offer to commit and to effect, by consent decree, hold separate order or otherwise, any and all Specified Actions or otherwise to offer to take or offer to commit (and if such offer is accepted, commit to and effect) to take any Specified Action as may be required to resolve any Governmental Authority’s objections to the Merger and the other transactions contemplated by this Agreement; provided, that Parent shall control strategy, communications, and timing with respect to parties’ efforts to obtain any necessary or advisable consents, approvals or non-objections, or expiration or termination of any waiting period under any Antitrust Laws. The Company shall not take or commit to take any Specified Action without Parent’s consent.
(e) In the event that any Proceeding is commenced challenging the Merger and the other transactions contemplated by this Agreement and otherwise such Proceeding seeks, or would reasonably be expected to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver seek, to prevent consummation of the application Merger and the other transactions contemplated by this Agreement, Parent and Merger Sub shall take any and all action with respect to the Parent or the Company or their respective Subsidiaries and controlled Affiliates to resolve any such Proceeding and each of the Company, Parent and Merger Sub shall cooperate with each other to contest any such 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 and the other transactions contemplated by this Agreement.
(f) Neither Parent nor Merger Sub shall, nor shall they permit Silver Lake Alpine Fund II, L.P. or any of their respective Subsidiaries and controlled Affiliates (for the avoidance of doubt, excluding portfolio companies of any such Legal RequirementEquity Investor) to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if available)such acquisition would reasonably be expected to (x) impose any material delay in the obtaining of, or materially increase the risk of not obtaining any applicable clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other authorization, or cause Parent, Merger Sub or the Company to be required to obtain any additional clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other authorization, under Applicable Laws with respect to the Merger and the other transactions contemplated by this Agreement and Agreement, (y) materially increase the risk of any Governmental Authority entering an Order prohibiting the transactions contemplated herebyby this Agreement, or (z) materially delay the consummation of the transactions contemplated by this Agreement.
(g) Notwithstanding the foregoing or any other provision of this Agreement, except as expressly set forth in Section 6.12(f) (subject to the limitations therein) or in Schedule 6.12 of the Company Disclosure Schedule, nothing in this Section 6.12 or any other provision of this Agreement shall require Parent or Merger Sub to, or cause any of their Affiliates to, take or agree to take, or to refrain from taking, any action contemplated by Section 6.12, including any Specified Action, with respect to the assets, properties, business or operations of (x) any Affiliates of the Parent, including Silver Lake, any investment funds or investment vehicles affiliated with, or managed or advised by, Silver Lake, or any portfolio company (as such term is commonly understood in the private equity industry) or direct or indirect investment of Silver Lake or of any investment fund or investment vehicle, or any interest therein, in each case, other than the Company, or its Subsidiaries and controlled Affiliates or (y) any Equity Investor or any Affiliates of any Equity Investor, or their respective portfolio companies (as such term is commonly understood in the private equity industry).
Appears in 2 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement and compliance with applicable Law and the other terms of this Agreement, each of the parties CPA16, Merger Sub, CPA14 and W. P. ▇▇▇▇▇ agrees to use its reasonable best efforts to take, or cause to be taken, all actions, 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 to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreementthe Transaction Documents, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all reasonable steps and remedies as may be necessary to avoid any suitobtain an approval, claim, action, investigation waiver or proceeding by exemption from any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals approvals, waivers or waivers exemptions from non-governmental third parties, including all Necessary Consents, and (iviii) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with addition, each of CPA16, Merger Sub, CPA14 and without limiting W. P. ▇▇▇▇▇ agrees to use its reasonable best efforts to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging the foregoing, the Company and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable to the AcquisitionMerger, this Agreement or any of the transactions contemplated by the Transaction Documents, including seeking to have any stay, temporary restraining order, injunction, or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated by the Transaction Documents entered by any court or other Governmental Entity vacated or reversed. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purpose of this Agreement, use reasonable best efforts the proper officers and directors of ▇▇▇▇▇, ▇▇▇▇▇, Merger Sub and W. P. ▇▇▇▇▇ shall take all such necessary action. From the date of this Agreement through the Effective Time, CPA14 shall timely file, or cause to ensure be filed, with the SEC all CPA14 SEC Documents required to be so filed.
(b) Each of ▇▇▇▇▇, ▇▇▇▇▇, Merger Sub and W. P. ▇▇▇▇▇ shall give prompt notice to each other party if (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or inaccurate in any material respect or (ii) it fails to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application delivery of any notice pursuant to this Section shall not limit or otherwise affect the remedies available hereunder to the party receiving such Legal Requirementnotice; and, if availableprovided further that failure to give such notice shall not be treated as a breach of covenant for the purposes of Sections 5.2(b) or 5.3(b), this Agreement and as the transactions contemplated herebycase may be.
Appears in 2 contracts
Sources: Merger Agreement (Corporate Property Associates 14 Inc), Agreement and Plan of Merger (Carey W P & Co LLC)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement (including those contained in this Section 5.12), each of the parties agrees to hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper proper, or advisable to consummate and make effective, as expeditiously as possible after and to satisfy all conditions to, in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsPermits, waivers, consents, approvals, orders and authorizations actions or nonactions from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, Entities; (iiiii) obtain the obtaining of all necessary consents, approvals consents or waivers from third parties, including all Necessary Consents, ; and (iviii) execute or deliver the execution and delivery of the Contingent Value Rights Agreement and any additional instruments necessary to consummate the transactions contemplated by, Merger and to fully carry out the purposes of, of this Agreement. In connection With respect to the Contingent Value Rights Agreement, prior to the Effective Time, Target and Aytu shall use reasonable best efforts to cooperate, including by making changes to the form of Contingent Value Rights Agreement, as necessary to ensure that such agreement is in a form reasonably acceptable to the rights agent and that the CVRs will be issued and, if required, registered in a manner compliant with all applicable securities laws. The Target and without limiting the foregoing, the Company and its Board of Directors Aytu shall, if subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any takeover statute information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or similar Legal Requirement is or becomes applicable to parties hereto, as the Acquisitioncase may be, this Agreement or of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Target, on the one hand, or Aytu or Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to ensure that make, or cause to be made, as soon as reasonably practicable and after consultation with the Acquisition other party, an appropriate response in compliance with such request, and, if permitted by applicable Law and by any applicable Governmental Entity, provide the other party's counsel with advance notice and the other opportunity to attend and participate in any meeting with any Governmental Entity in respect of any filing made thereto in connection with the transactions contemplated by this Agreement may Agreement. Neither Aytu nor the Target shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be consummated as promptly as practicable on unreasonably withheld, conditioned, or delayed).
(b) In the terms event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Merger or any other transaction contemplated by this Agreement Agreement, or any other agreement contemplated hereby, the Target, Aytu and otherwise Merger Sub shall each use its reasonable best efforts to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of contest and resist any such Legal Requirementaction or proceeding and to have vacated, if available)lifted, this Agreement reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated herebyby this Agreement.
(c) Notwithstanding anything to the contrary set forth in this Agreement, none of Aytu, Merger Sub, or any of their respective Subsidiaries shall be required to, and the Target may not, without the prior written consent of Aytu, become subject to, consent to, or offer or agree to, or otherwise take any 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 assets, business, or portion of business of the Target, the Surviving Corporation, Aytu, Merger Sub, or any of their respective Subsidiaries; (ii) conduct, restrict, operate, invest, or otherwise change the assets, business, or portion of business of the Target, the Surviving Corporation, Aytu, Merger Sub, or any of their respective Subsidiaries in any manner; or (iii) impose any restriction, requirement, or limitation on the operation of the business or portion of the business of the Target, the Surviving Corporation, Aytu, Merger Sub, or any of their respective Subsidiaries; provided, that if requested by Aytu, the Target will become subject 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 Target in the event the Closing occurs.
Appears in 2 contracts
Sources: Merger Agreement (Innovus Pharmaceuticals, Inc.), Merger Agreement (Aytu Bioscience, 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 set forth hereinof this Agreement and applicable Law, each of the parties agrees to Parties shall act in good faith and use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 Agreement 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreementsoon as practicable. In connection with and without Without limiting the foregoing, the Company and its Board of Directors Parties shall, if and shall cause their respective affiliates, and use reasonable best efforts to cause their (and their respective affiliates) directors, officers, employees, agents, attorneys, accountants and representatives, to (i) obtain all consents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications or other permissions or actions by, and give all necessary notices to, and make all filings with and applications and submissions to, any takeover statute Governmental Entity or similar Legal Requirement is or becomes applicable to other person necessary in connection with the Acquisition, this Agreement or any consummation of the transactions contemplated by this AgreementAgreement as soon as reasonably practicable; (ii) provide all such information concerning such Party, use its affiliates and its officers, directors, employees and partners as may be necessary or reasonably requested in connection with any of the foregoing; (iii) avoid the entry of, or have vacated or terminated, any injunction, decree, order, or judgment that would restrain, prevent, or delay the consummation of the transactions contemplated hereby, including but not limited to defending through litigation on the merits any claim asserted in any court by any person; and (iv) take any and all reasonable best efforts steps necessary to ensure avoid or eliminate every impediment under any antitrust, competition, or trade regulation law that is asserted by any Governmental Entity with respect to the Acquisition transactions contemplated hereby so as to enable the consummation of such transactions to occur as expeditiously as possible. Notwithstanding the foregoing, DISH and its affiliates shall not be required to take an action to obtain regulatory approval that it determines to be adverse to DISH, any of its affiliates or the International Assets.
(b) The Seller and DISH shall keep the 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 communications received by either of them or by any of their respective affiliates, from any third party and/or any Governmental Entity with respect to the 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyAgreement.
Appears in 2 contracts
Sources: Implementation Agreement, Implementation Agreement (ICO Global Communications (Holdings) LTD)
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 conditions herein provided for the conditions set forth hereinCompany, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actionsappropriate action, 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 applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition Investment Transactions and the other transactions contemplated by this Agreement. In case at any time after Closing Date any further action is necessary or desirable to carry out the purposes of this Agreement, including by using the proper officers and directors of each party to this Agreement shall take all such necessary action. Such reasonable best efforts to: shall include, without limitation, (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making obtaining of all necessary registrations, declarations 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, parties and (iv) execute or deliver any additional instruments governmental authorities necessary to consummate the consummation of the transactions contemplated byby this Agreement and (ii) opposing vigorously any litigation or administrative proceeding relating to this Agreement or the transactions contemplated hereby, including, without limitation, promptly appealing any adverse court or agency order. Notwithstanding the foregoing or any other provisions contained in this Agreement to the contrary, neither the Investor nor any of its affiliates shall be under any obligation of any kind to enter into any negotiations or to otherwise agree with any Governmental Entity, including but not limited to any governmental or regulatory authority with jurisdiction over the enforcement of any applicable federal, state, local and foreign antitrust, competition or other similar laws, or any other party to fully carry out the purposes sell or otherwise dispose of, this Agreement. In connection with and without limiting hold separate (through the foregoingestablishment of a trust or otherwise) particular assets or categories of assets or businesses of any of the Company, the Investor or any of the Investor's affiliates. Further, in the event the requisite approval of stockholders is not obtained at the Stockholder Meeting, no party hereto will be under any further obligation to cause the Closings to occur.
(b) The Company and its subsidiaries shall give and make all required notices and reports to the appropriate persons with respect to the Permits and Environmental Permits that may be necessary for the consummation of the Investment Transactions.
(c) The Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement or any of the Acquisition, transactions hereby and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any of the transactions contemplated by this Agreementhereby, use reasonable best efforts take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition transactions contemplated by this Agreement.
(including d) To the extent required by seeking a waiver applicable law, the Company and the Investor and its controlling shareholders shall use commercially reasonable efforts to do each of the application following:
(i) as soon as practicable after the date of this Agreement, file with the appropriate governmental authority any notification form required to be filed by such Legal Requirementparty under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, if available), as amended (the "HSR Act") with respect to this Agreement and the transactions contemplated hereby., together with a request for early termination of the applicable waiting period; and
(ii) after consultation with the other parties, make any additional filing required to be made under the HSR Act and promptly furnish to the appropriate governmental authority such additional information as may be requested under the HSR Act;
Appears in 2 contracts
Sources: Securities Purchase Agreement (SCC Investment I Lp), Securities Purchase Agreement (Mansfield Teddy L)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto party in doing, all things necessary, proper or advisable advisable, to consummate and make effective, as expeditiously soon as possible after the date hereof (and in any event before the Termination Date)reasonably practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts including, but not limited to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrationswith, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all other reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, Entity (iiiincluding those in connection with the HSR Act and any State Takeover Approvals); (ii) obtain the obtaining of all necessary consents, approvals or waivers from third partiespersons other than Governmental Entities; (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, including all Necessary Consents, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In connection with and without limiting .
(b) Each party hereto shall refrain from taking any action, or entering into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or to result in a breach of any of its representations, warranties or covenants in this Agreement.
(c) Notwithstanding any provision in this Agreement to the foregoing, contrary: (i) neither IGL nor FTX shall be obligated to use its reasonable best efforts or to take any action (or omit to take any action) pursuant to this Agreement if the Company and its Board of Directors shallof IGL or FTX, if as the case may be, shall conclude in good faith, after consultation with its outside counsel, that such action would violate the fiduciary obligations of such Board of Directors under applicable law; and (ii) in connection with any takeover statute filing or similar Legal Requirement is submission or becomes applicable other action required to be made or taken by either IGL or FTX to effect the AcquisitionMerger and to consummate the other transactions contemplated hereby, this Agreement FTX shall not, without IGL's prior written consent, commit to any divestiture transaction, and neither IGL nor any of its Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, FTX or any material portions thereof or any of the transactions contemplated by this Agreementbusiness, use reasonable best efforts to ensure that the Acquisition 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 product lines, properties or assets of such Legal Requirement on the Acquisition (including by seeking a waiver IGL or any of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyits Affiliates.
Appears in 2 contracts
Sources: Merger Agreement (Imc Global Inc), Merger Agreement (Freeport McMoran Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this AgreementAgreement and the Shareholders Agreements, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as practicable, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute the defending of any lawsuits or deliver other legal proceedings, whether judicial or administrative, challenging this Agreement or any additional instruments necessary to consummate of the Shareholders Agreements or the consummation of the Merger or the other transactions contemplated by, and to fully carry out the purposes of, this Agreement. Agreement and the Shareholders Agreements, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by, and to fully carry out the purposes of, this Agreement and the Shareholders Agreements.
(b) In connection with and without limiting the foregoing, the Company each party shall use its reasonable best efforts to furnish to each other all information required for any filing, form, declaration, notification, registration and its Board of Directors shallnotice, if any takeover statute other than confidential or similar Legal Requirement is or becomes applicable proprietary information not directly related to the Acquisition, this Agreement or any of the transactions contemplated by this Agreement, and to keep the other party reasonably informed with respect to the status of each clearance, approval or waiver sought from a Governmental Entity in connection with the transactions contemplated by this Agreement and the material communications between such party and such Governmental Entity. Each party shall without limitation: (1) promptly notify the other of, and if in writing, furnish the other with copies of (or, in the case of oral communications, advise the other of) any communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement, (2) permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written or any oral communication with any such Governmental Entity, (3) not participate in any meeting or have any communication with any such Governmental Entity unless it has given the other an opportunity to consult with it in advance and to the extent permitted by such Governmental Entity gives the other the opportunity to attend and participate therein, (4) furnish the other with copies of all filings and communications between it and any such Governmental Entity with respect to the transactions contemplated by this Agreement, and (5) 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 such Governmental Entity. Such materials and the information contained therein shall be given only to the 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 permission is obtained in advance from the disclosing party or its legal counsel.
(c) In connection with and without limiting the foregoing, US BioEnergy and its Board of Directors and VeraSun and its Board of Directors shall each use their respective reasonable best efforts to: (1) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or any of the Shareholders Agreements or the Merger or any of the other transactions contemplated by this Agreement or any of the Shareholders Agreements and (2) if any state takeover statute or similar statute becomes applicable to this Agreement, any of the Shareholders Agreements, the Merger or any other transactions contemplated by this Agreement or any of the Shareholders Agreements, take all action necessary to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement and the Shareholders Agreements may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Shareholders Agreements and otherwise to minimize the effect of such Legal Requirement statute or regulation on this Agreement, the Acquisition (including Shareholders Agreements, the Merger and the other transactions contemplated by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the Shareholders Agreements. Nothing in this Agreement shall be deemed to require VeraSun or US BioEnergy to agree to, or proffer to, divest or hold separate any assets or any portion of any business of VeraSun, US BioEnergy or any of their respective Subsidiaries that is material to the business, financial condition or results of operations, of VeraSun, US BioEnergy and their respective Subsidiaries (after giving effect to the Merger), taken as a whole. Without limiting the generality of the foregoing, each of US BioEnergy and VeraSun shall give the other party the opportunity to participate in the defense of any litigation against US BioEnergy or VeraSun, as applicable, and/or its directors relating to the transactions contemplated herebyby this Agreement and the Shareholders Agreements.
Appears in 2 contracts
Sources: Merger Agreement (Verasun Energy Corp), Merger Agreement (US BioEnergy CORP)
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 set forth hereinof this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actionsappropriate action, 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 applicable Laws and regulations to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement. Without limiting the foregoing, including by using (i) each of the Company, Parent and Purchaser shall use its reasonable best efforts to: (i) cause to make promptly any required submissions under the conditions precedent set forth in Article VI HSR Act with respect to be satisfiedthe Offer, the Merger and the transactions contemplated hereby, and (ii) obtain all necessary actions Parent, Purchaser and the Company shall cooperate with one another (A) in promptly determining whether any filings are required to be or nonactions, waivers, should be made or consents, approvals, orders and Permits or authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject are required to the limitations set forth herein, the taking of all steps and remedies as may be necessary to avoid or should be obtained under any suit, claim, action, investigation Law or proceeding by whether any Governmental Entity, (iii) obtain all necessary consents, approvals or waivers are required to be or should be obtained from third parties, including all Necessary Consents, and (iv) execute other parties to Contracts or deliver any additional instruments necessary material to consummate the Company’s business in connection with the consummation of the transactions contemplated byby this Agreement and (B) in promptly making any such filings, furnishing information required in connection therewith and seeking to fully carry out the purposes ofobtain timely any consents, this Agreement. In connection with and without limiting the foregoingPermits, authorizations, approvals or waivers required to be made or which the Company and its Board of Directors shallParent mutually agree should be made.
(b) In the event that any action, if any takeover statute suit, proceeding or similar Legal Requirement is or becomes applicable investigation relating to the Acquisition, this Agreement or to the transactions contemplated hereby is commenced by any Person other than a party hereto, whether before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend vigorously against it and respond thereto 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, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Pulmuone Cornerstone Corp), Merger Agreement (Monterey Gourmet Foods)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things that are necessary, proper or advisable to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition Merger and the other transactions contemplated by this Agreement and the Shareholder Agreement, including by using its reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any), (iii) and, subject to the limitations set forth herein, the taking of all reasonable steps and remedies as may be necessary to avoid any suit, claim, action, investigation or proceeding by any a Governmental Entity, Entity and (iiiiv) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (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 state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement, the AcquisitionShareholder Agreement, this Agreement the Merger or any of the other transactions contemplated by this Agreementhereby or thereby, use their reasonable best efforts to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement hereby or thereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement statute or regulation on this Agreement, the Acquisition (including by seeking a waiver of Shareholder Agreement, the application of Merger and the other transactions contemplated hereby or thereby. If any such Legal Requirement, if available), this Agreement and objections are asserted with respect to the transactions contemplated herebyby this Agreement under any antitrust or competition law, each of Parent and the Company shall use its reasonable best efforts and cause its subsidiaries to use their reasonable best efforts to resolve any such objections so as to permit consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall any party hereto be obligated to (A) agree to, or proffer to, divest or hold separate, or enter into any licensing or similar arrangement with respect to, any assets (whether tangible or intangible) or any portion of any business of Parent, the Company or any of their respective subsidiaries or (B) litigate any suit, claim, action, investigation or proceeding, whether judicial or administrative, brought by any Governmental Entity (1) challenging or seeking to restrain or prohibit the consummation of the Merger; (2) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective affiliates of any portion of the business or assets of the Company or its subsidiaries or Parent or its subsidiaries or to require any such person to dispose of or hold separate any portion of the business or assets of the Company or its subsidiaries, or Parent or its subsidiaries, as a result of the Merger; or (3) seeking to prohibit Parent or any of its affiliates from effectively controlling the business or operations of the Company or its subsidiaries. The Company and Parent will provide such assistance, information and cooperation to each other as is reasonably required to obtain any such nonactions, waivers, consents, approvals, orders and authorizations and, in connection therewith, will notify the other person promptly following the receipt of any comments or requests from any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and will supply the other person with copies of all correspondence between such person or any of its representatives, on the one hand, and any Governmental Entity, on the other hand.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Chemfirst Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity or any Restraint (as defined in Section 6.1(d)) vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Nothing set forth in this Section 5.5(a) will limit or affect actions permitted to be taken pursuant to Section 4.2.
(b) In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any Parent shall use reasonable best efforts (i) to take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the Acquisition, this Agreement or the Merger or any of the other transactions contemplated by hereby or thereby and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this AgreementAgreement or the Merger or any other transaction contemplated hereby or thereby, use reasonable best efforts to take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition Merger and the other transactions contemplated by this Agreement.
(including by seeking a waiver c) Each of the application Company and Parent shall cooperate with each other in obtaining opinions of Debevoise & Plim▇▇▇▇ ▇▇▇ Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇, ▇▇ch dated as of the Effective Time, to the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code. In connection therewith, each of Parent, Sub and the Company shall deliver to such counsel customary representation letters in form and substance reasonably satisfactory to such counsel and the Company shall use all reasonable efforts to obtain any representation letters from appropriate stockholders and shall deliver any such Legal Requirementletters obtained to Debevoise & Plim▇▇▇▇ ▇▇▇ Jone▇, if available▇▇y, Reav▇▇ & ▇ogu▇ (▇▇e representation letters referred to in this sentence are collectively referred to as the "Tax Certificates"), this Agreement and the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Mapco 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 conditions of this Agreement, the conditions set forth herein, each of the parties agrees to Company and Parent shall use their respective reasonable best efforts to take, or cause to be taken, all actions, 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 Applicable Law to consummate the transactions contemplated by this Agreement as promptly as practicable after the date hereof and, other than in the case of clause (iv) below, in no event later than the End Date, including (i) the obtaining of all necessary actions or non-actions, waivers, consents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any), (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties (provided that the Company shall not be obligated to make effectiveany payment or commercial concession to any Third Party, or incur any liability, as expeditiously a condition to (or in connection with) obtaining any such consent or waiver, unless such payment, concession or liability is requested by Parent and is conditioned and effective only upon the Closing), (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement and (iv) the preparation and timely filing of any reports under Section 13(a) or 15(d) of the Exchange Act as possible may be required in connection with this Agreement and the transactions contemplated hereby, including the filing of a Current Report on Form 8-K by Parent following the consummation of the Mergers to include financial statements of the Company and other financial information (including pro forma financial information) in compliance with Regulation S-X promulgated by the SEC.
(b) In furtherance and not in limitation of the foregoing, each of the Company (and its Affiliates, if applicable) and Parent (and its Affiliates, if applicable) shall: (i) promptly, but in no event later than 10 Business Days after the date hereof (and or in the event that the relevant Governmental Authority has suspended its acceptance of filings under the HSR Act for any event before reason, five Business Days after the Termination DateGovernmental Authority resumes normal operating procedures), file any and all notices, reports and other documents required to be filed by such party under the Acquisition HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement; provided that if there are any changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, then the Company and Parent shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as commercially practicable thereafter; (ii) as promptly as reasonably practicable, but in no event later than 20 Business Days after the date hereof, make all filings necessary to timely obtain all consents, permits, authorizations, waivers, clearances and approvals, and shall cause the expiration or termination of any applicable waiting periods, as may be required under the Antitrust Laws or Foreign Investment Laws of the jurisdictions set forth on Section 6.10(b) of the Company Disclosure Schedule (to the extent required or advisable); and (iii) as promptly as reasonably practicable provide such information as may reasonably be requested by the U.S. Department of Justice (the “DOJ”) or the Federal Trade Commission (the “FTC”) under the HSR Act or by any other Governmental Authority under applicable Antitrust Laws or Foreign Investment Laws in connection with the Mergers and the other transactions contemplated by this Agreement, including as well as any information required to be submitted to comply with a request for additional information in order to commence or end a statutory waiting period. Parent shall pay all filing fees under the HSR Act and other applicable Antitrust Laws or Foreign Investment Laws, and the Company shall not be required to pay any filing fees to any Governmental Authority in connection with any filings under the HSR Act or such other filings as may be required under applicable Antitrust Laws, in connection with the Mergers or the other transactions contemplated by using this Agreement.
(c) Without limiting the generality of anything contained in this Section 6.10, each party hereto shall use reasonable best efforts to: (i) cause give the conditions precedent set forth in Article VI other parties prompt notice of the making or commencement of any substantive request, inquiry or Proceeding by any Governmental Authority with respect to be satisfied, the Mergers and the other transactions contemplated by this Agreement; (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and keep the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject other parties reasonably informed as to the limitations set forth hereinstatus of any such request, the taking of all steps and remedies as may be necessary to avoid any suit, claim, action, investigation inquiry or proceeding by any Governmental Entity, Proceeding; (iii) obtain all necessary consentspromptly inform the other parties of any substantive communication to or from the FTC, approvals DOJ or waivers from third parties, including all Necessary Consents, and (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 other Governmental Authority to the Acquisition, this Agreement or any of extent regarding the Mergers and the other transactions contemplated by this Agreement, use reasonable best efforts or regarding any such request, inquiry or Proceeding, and provide a copy of all substantive written communications; and (iv) in the case of Parent, pull and re-file any notice under the HSR Act only after consulting in good faith with and the consent of the other party (such consent not to ensure be unreasonably withheld, conditioned or delayed). Subject to Applicable Law, in advance and to the extent practicable, each of Parent or the Company, as the case may be, will consult the other on all the material information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries that appear in any filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection with the Acquisition Mergers and the other transactions contemplated by this Agreement and shall consider in good faith all comments reasonably proposed by Parent or the Company, as the case may be; provided, however, that either party may limit access to information solely to those individuals acting as outside antitrust counsel for the other parties (provided that such counsel shall not disclose such information to such other parties and shall enter into a joint defense agreement with the providing party) and that neither party shall be required to provide the other party or their counsel access to its filing(s) contemplated in Section 6.10(b). In addition, except as may be consummated prohibited by any Governmental Authority or by any Applicable Law, in connection with any such request, inquiry or Proceeding in respect of the Mergers and the other transactions contemplated by this Agreement, each party hereto will permit authorized Representatives of the other party to be present at each substantive meeting or conference relating to such request, inquiry or Proceeding and to have access to and be consulted in connection with any substantive document, opinion or proposal made or submitted to any Governmental Authority in connection with such request, inquiry or Proceeding. Any disclosures, rights to participate or provisions of information by one party to the other under this Section 6.10(c) may be made on a counsel-only basis and redacted for legal privilege to the extent required under applicable Law or to remove references concerning the valuation of the Company or confidential competitively sensitive business information of the Company.
(d) In furtherance and not in limitation of the foregoing, P▇▇▇▇▇ agrees to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under the Antitrust Laws that may be required by any Governmental Authority, so as promptly to enable the parties hereto to consummate the Mergers and the other transactions contemplated by this Agreement as soon as practicable on (and in any event no later than the terms End Date), including (i) committing to or effecting, by consent decree, hold separate order, trust, or otherwise, the sale, divestiture, license, transfer, assignment or other disposition of assets or businesses of the Company or its Subsidiaries and controlled Affiliates, (ii) terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, licenses, collaborations, relationships, ventures, contractual rights, obligations or other arrangements of the Company or its Subsidiaries and controlled Affiliates and (iii) creating or consenting to create or enter into any agreements, licenses, collaborations, relationships, ventures, contractual rights, obligations, behavioral undertakings or other arrangements (and, in each case, to enter, or offer to enter, into agreements and stipulate to the entry of an Order or file appropriate applications with any Governmental Authority in connection with any of the foregoing and in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets, by consenting to such action by the Company; provided, however, that any such action must be conditioned upon consummation of the Mergers and the other transactions contemplated by this Agreement) (each action contemplated by clauses (i) through (iii) a “Specified Action”); provided, further, that notwithstanding anything to the contrary in this Agreement (including pursuant to this Section 6.10(d)), none of Parent, Acquirer, Merger Sub, Merger Sub II or any other Affiliate of Parent shall be required to take any actions (including any Specified Actions) or propose, negotiate, offer to commit or agree to any restrictions, conditions, restraints or concessions (including any Specified Actions) that would result in a Burdensome Condition, and none of the Company or any of its Subsidiaries shall take any actions (including any Specified Actions) or propose, negotiate, offer to commit or agree to any restrictions, conditions, restraints or concessions (including any Specified Actions) that would result in a Burdensome Condition without the prior written consent of Parent. Parent and the Company shall cooperate in good faith in any proposal, negotiation, or offer to commit and to effect, by consent decree, hold separate order or otherwise, any and all Specified Actions (other than any Specified Action that would result in the imposition of a Burdensome Condition) as may be required to resolve any Governmental Authority’s objections to the Mergers and the other transactions contemplated by this Agreement.
(e) Subject to Section 6.10(d), in the event that any Proceeding is commenced challenging the Mergers and the other transactions contemplated by this Agreement and otherwise such Proceeding seeks, or would reasonably be expected to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver seek, to prevent consummation of the application Mergers and the other transactions contemplated by this Agreement, each of the Company, Parent, Acquirer, Merger Sub and Merger Sub II shall use reasonable best efforts to cooperate with each other to contest any such 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 Mergers and the other transactions contemplated by this Agreement, which reasonable best efforts shall not, for the avoidance of doubt, include proposing, negotiating, offering to commit or agreeing to commit any Specified Action that would result in a Burdensome Condition.
(f) None of Parent, Acquirer, Merger Sub or Merger Sub II shall, nor shall they permit any of their respective Subsidiaries or controlled Affiliates to, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to (x) impose any material delay in the obtaining of, or materially increase the risk of not obtaining any applicable clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other authorization, (y) materially increase the risk of any such Legal Requirement, if available), this Agreement and Governmental Authority entering an Order prohibiting the transactions contemplated herebyby this Agreement, or (z) materially delay the consummation of the transactions contemplated by this Agreement to a date after the End Date.
(g) Parent and the Company shall jointly (i) direct, devise and implement the strategy for obtaining any necessary approval of, for responding to any request from, inquiry or investigation by, and in connection with all meetings and communications (including any negotiations) with, any Governmental Authority that has authority to enforce any Antitrust Law and (ii) control the defense and settlement of any Proceeding brought by or before any Governmental Authority that has authority to enforce any Antitrust Law; provided that, in the event of a dispute regarding the appropriate course of action regarding the foregoing or any matter contemplated by this Section 6.10, Parent shall be entitled to make the final determination after considering in good faith the view of the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Enfusion, Inc.), Agreement and Plan of Merger (Enfusion, 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 set forth hereinin this Agreement, each of the Company, Parent and Merger Sub 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 agrees 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, all actions, other actions and to do, or cause to be done, and to assist and cooperate with the all other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreementhereby, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 (iv) execute or deliver any additional instruments necessary to consummate promptly inform the transactions contemplated byother party, and to fully carry out if in writing, furnish the purposes other party with copies of (or, in the case of oral communications, advise the other party orally of), this Agreement. In connection with and without limiting the foregoing, the Company and its Board receipt of Directors shall, if any takeover statute communication from or similar Legal Requirement is or becomes applicable to the Acquisition, this Agreement Antitrust Division of the United States Department of Justice or Federal Trade Commission or any other Governmental Entity regarding any of the transactions contemplated by this Agreement, and (v) subject to applicable legal limitations and 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 Governmental Entity with respect to the Offer or the Merger. Except in connection with a disclosure regarding a Change of Recommendation or an Acquisition Proposal received by the Company, 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. Each of the Company and Parent agrees not to (A) participate in any 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 by this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed). The foregoing notwithstanding, the 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 6.3 after consulting with, and taking into account in good faith any comments of, the Company relating to such strategy.
(c) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.3, 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 will cooperate in all respects with each other and will use their respective reasonable best efforts to ensure 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. 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 beyond the 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 Acquisition Offer Closing, the Closing and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on by the terms contemplated by Outside Date; provided, however, that anything in this Agreement to the contrary notwithstanding, Parent will not be required to, and otherwise the Company may not, take or agree to minimize take any such action that, individually or in the aggregate, would be reasonably likely to result in a material adverse effect of such Legal Requirement on (i) the Acquisition Company and its Subsidiaries, taken as a whole, considered on a standalone basis or (including by seeking ii) on Parent’s maintenance, repair and operations business, considered on a waiver combined basis with the business of the application Company and its Subsidiaries after the Closing. Notwithstanding the foregoing or any other provision of any such Legal Requirementthis Agreement, if available), nothing in this Section 6.3 will limit a party’s right to terminate this Agreement and the transactions contemplated herebypursuant 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
Sources: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth herein, each (a) Each of the parties agrees to shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable reasonably appropriate to consummate and make effective, as expeditiously soon as possible after the date hereof (and in any event before the Termination Date)reasonably possible, the Acquisition and the other transactions contemplated by this AgreementTransactions, including by using reasonable best efforts to: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI VII to be satisfiedsatisfied as soon as reasonably practicable, (ii) obtain the obtaining of all necessary actions mandatory or nonactionsappropriate nonactions and consent, waiversapproval, consentsclearance, approvalswaiver, orders and authorizations Permit or order (“Consents”) from Governmental Entities and the making of all necessary registrations, declarations mandatory or appropriate registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain a Consent from, or to avoid any suitan Action by, claim, action, investigation or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals mandatory or waivers appropriate Consents from third parties, including all Necessary Consentsprovided that no party shall be required or permitted to 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 any such Consents and (iv) execute or deliver the execution and delivery of any additional instruments necessary mandatory or appropriate to consummate the transactions contemplated by, Transactions and to fully carry out the purposes of, this Agreement. of the Transaction Agreements.
(b) In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if parties shall (i) take all action necessary (including by granting any approvals) to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the Acquisition, this Agreement Transactions or the Transaction Agreements and (ii) if any of the transactions contemplated by this state takeover statute or similar statute or regulation becomes applicable to any Transaction or Transaction Agreement, use reasonable best efforts take all action necessary (including by granting any approvals) to ensure that the Acquisition and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement the Transaction Agreements and otherwise to eliminate or minimize the effect of such Legal Requirement statute or regulation on the Acquisition Transactions.
(including by seeking c) Notwithstanding this Section 6.03 or anything else to the contrary herein, none of Parent, the Company, or any of their respective Subsidiaries shall be obligated to agree, and none of Parent, the Company, or any of their respective Subsidiaries shall agree without the other party’s prior written consent, to take any action or accept any condition, restriction, obligation or requirement with respect to Parent, the Company, their respective Subsidiaries or Affiliates or their and their respective Subsidiaries’ or Affiliates’ assets if such action, condition, restriction, obligation or requirements (i) would reasonably be expected to require Parent, the Company or their respective Subsidiaries or Affiliates to sell, license, transfer, assign, lease, dispose of or hold separate any business or assets or (ii) would reasonably be expected to result in any limitations on Parent or the Company or their respective Subsidiaries or Affiliates to own, retain, conduct or operate all or a waiver portion of their respective businesses or assets.
(d) Subject to applicable Law, each party shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with obtaining all mandatory or appropriate nonactions and Consents from Governmental Entities, and each party shall (i) keep one another reasonably informed as to the status of and the processes and proceedings relating to obtaining nonactions and Consents from Governmental Entities, (ii) give prompt notice to the other party of any direct or indirect communication with a Governmental Entity in connection with the Transactions or with any person alleging that the consent of such person is or may be required in connection with the Transactions, in each case to the extent such other party is not aware of such matter, (iii) prior to making any direct or indirect substantive communication with a Governmental Entity or submission of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, or proposals to a Governmental Entity in connection with the Transactions, provide the other party and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the application other party in connection with any such communications, analyses, appearances, presentations, memoranda, briefs, arguments, opinions, or proposals, and (iv) unless impractical, allow the other party to participate in any substantive teleconference or in-person meetings with a Governmental Entity in connection with the Transactions; provided, however, that no notification pursuant to this Section 6.03(d) shall affect the representations, warranties, covenants or agreements of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, the Company shall not be in breach of its obligations pursuant to this Section 6.03 if the failure of the Company to comply with any obligation hereunder was primarily the result of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyaction or failure to act that was directed by Parent or any of its Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Jefferies Financial Group Inc.), Merger Agreement (Homefed Corp)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement (including those contained in this Section 5.10), each of the parties agrees to hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after and to satisfy all conditions to, in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionspermits, waivers, consents, approvals, orders approvals and authorizations actions or nonactions from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntities, (iiiii) obtain the obtaining of all necessary consents, approvals consents or waivers from third parties, including all Necessary Consentsparties that are material to the Company’s business or otherwise necessary to consummate the Merger, and (iviii) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Merger and to fully carry out the purposes of, of this Agreement. In connection with and without limiting the foregoing, the The Company and its Board of Directors Parent shall, if subject to applicable Law, promptly (x) cooperate and coordinate with the other in the taking of the actions contemplated by the preceding sentence, and (y) supply the other with any takeover statute information that may be reasonably required in order to effectuate the taking of the actions contemplated by the preceding sentence. Each party hereto shall promptly inform the other party or similar Legal Requirement is or becomes applicable to parties hereto, as the Acquisitioncase may be, this Agreement or of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company or Parent receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to ensure that make, or cause to be made, as soon as reasonably practicable and after consultation with the Acquisition other party, an appropriate response in compliance with such request, and, if permitted by applicable Law and by any applicable Governmental Entity, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting with any Governmental Entity in respect of any filing made thereto in connection with the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 5.10(a) hereof, the parties hereto shall (i) provide or cause to be provided as promptly as reasonably practicable to Governmental Entities with jurisdiction over the Antitrust Laws (each such Governmental Entity, a “Governmental Antitrust Authority”) information and documents requested by any Governmental Antitrust Authority as necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, including preparing and filing any notification and report form and related material required under the HSR Act and any additional consents and filings under any other Antitrust Laws as promptly as practicable following the date of this Agreement (provided that in the case of the filing under the HSR Act, such filing shall be made within ten (10) Business Days of the date of this Agreement) and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act or any other applicable Antitrust Laws and (ii) subject to the terms set forth in Section 5.10(c) hereof, use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt approval of the consummation of the transactions contemplated by this Agreement may by any Governmental Entity or expiration of applicable waiting periods.
(c) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be consummated as promptly as practicable on instituted) by a Governmental Entity or private party challenging the terms Merger or any other transaction contemplated by this Agreement Agreement, or any other agreement contemplated hereby, the Company, Parent and otherwise Merger Sub shall cooperate in all respects, discuss in good faith actions to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of take and use their respective reasonable best efforts to contest and resist any such Legal Requirementaction or proceeding and to have vacated, if available)lifted, this Agreement reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated herebyby this Agreement.
(d) Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any 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 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 assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, or (ii) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries which, in the case of the foregoing clauses (i) and (ii), could have a material adverse effect on the business, results of operations, condition (financial or otherwise), or assets of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries.
Appears in 1 contract
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 set forth hereinof this Agreement, each of the parties agrees to Company and Parent shall use their reasonable best efforts to take, or cause to be taken, all actions, 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 applicable Law to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) the taking of all acts necessary to cause the conditions precedent to the other party’s (viewing Parent and Merger Sub together) obligation to close set forth in Article VI 9 to be satisfiedsatisfied as promptly as practicable (but in any event prior to the End Date), (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making obtaining of all necessary registrations, declarations 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 partiesfrom, including and the giving of all Necessary Consentsrequired notices to, Third Parties (iii) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (iv) execute obtaining and maintaining all Permits required to be obtained from any Governmental Authority or deliver any additional instruments necessary other Third Party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided that the parties hereto understand and agree that notwithstanding anything to the contrary in this Agreement, in no event shall Parent or any of its Affiliates be required to, and “reasonable best efforts” will in no event require, or be construed to require, Parent or any of its Affiliates to (A) initiate, litigate, challenge, defend or otherwise participate or take any action with respect to any Action (except as provided in Section 8.01(b)(iii)) by, and against or involving any Third Party or Governmental Authority with respect to fully carry out the purposes of, transactions contemplated by this Agreement. In , (B) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with and without limiting the foregoingtransactions contemplated by this Agreement, (C) otherwise take any other steps or actions to defend against, vacate, modify or suspend any injunction or order of any Governmental Authority, including any injunction related to a private cause of action that would prevent 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 consummation of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and (D) agree, propose, negotiate, offer, sell, divest, lease, license, transfer, dispose of or otherwise to minimize the effect of such Legal Requirement on the Acquisition encumber or hold separate (including by seeking establishing a waiver trust, licensing any Intellectual Property Rights or otherwise), or take any other action (including by providing its consent to permit the Company or any of its Subsidiaries to take any of the application foregoing actions), or otherwise proffer or agree to do any of the foregoing, with respect to any of the businesses, assets or properties of Parent, the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries or (E) otherwise offer to take or offer to commit to take any action that would limit Parent’s or any of its Affiliates’ freedom of action with respect to, or ability to retain, operate or otherwise exercise full rights of ownership with respect to, businesses, assets or properties of Parent, the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries (or equity interests held by Parent or any of its Affiliates in entities with businesses, assets or properties). At the request of Parent, the Company shall agree to divest, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of its Subsidiaries (but, absent such request, the Company shall not take any such Legal Requirementaction); provided that in no event shall the Company be required to take any such action described in this sentence that would not be conditioned on, if available)and effective upon or after, this Agreement and the transactions contemplated herebyoccurrence of the Closing.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously soon as possible after following the date hereof (and in any event before the Termination Date)hereof, the Acquisition Mergers and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: in (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities 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, declarations registrations 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 obtain a Required Consent from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers waivers, and any necessary or appropriate financing arrangements, from third parties, (iii) the contesting and 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 all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement, and (v) refraining from taking any action that would reasonably be expected to impede, interfere with, prevent or materially delay the consummation of the Mergers. In connection with furtherance and without limiting 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 Company and its Board of Directors shallHSR Act with respect to the transactions contemplated hereby as promptly as practicable, (ii) appropriate filings, if any takeover statute or similar Legal Requirement is or becomes applicable are required, pursuant to foreign Antitrust Laws as promptly as practicable and (iii) all other necessary filings with other Governmental Entities relating to the AcquisitionMerger, 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 cause the 69 expiration or termination of any applicable waiting periods under the Antitrust Laws and the receipt of the Required Consents as soon as practicable. The parties agree that the use of “reasonable best efforts” in this Agreement Section 6.3 shall include proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, (x) the sale, divestiture or disposition of such assets or businesses of either party or its Subsidiaries or affiliates and (y) restrictions, or actions that after the Effective Time would limit HoldCo’s or its subsidiaries’ or affiliates’ freedom of action or operations with respect to, or its ability to retain, one or more of its or its subsidiaries’ businesses, product lines or assets, in each case (A) 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 contemplated by this AgreementAgreement and (B) conditioned upon the consummation of the Mergers.
(b) The parties shall jointly develop, use reasonable best efforts and each of the parties shall consult and cooperate in all respects with one another, and consider in good faith the views of one another, in connection with 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 ensure that any Antitrust Law prior to their submission. Each of the Acquisition and parties shall (i) promptly notify the other transactions contemplated 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 party to review in advance any proposed communication to any such Governmental Entity and incorporate the other party’s reasonable comments, (ii) not agree to participate in any meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement may be consummated as or the Mergers unless, to the extent reasonably practicable, 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 therein and (iii) promptly as practicable furnish the other party with copies of all correspondence, filings and written communications between them and their affiliates and their respective officers, directors, employees and Representatives, on one hand, and any such Governmental Entity or its respective staff on the terms contemplated by this Agreement and otherwise other hand, with respect to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyMerger 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 Section 6.3(b) may be redacted as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
Appears in 1 contract
Sources: Merger Agreement
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: to accomplish the following:
(i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfied, ,
(ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental Entity, ,
(iii) obtain the obtaining of all necessary consents, approvals or waivers from third partiesparties other than Governmental Entities (provided that if obtaining any such consent, including all Necessary Consentsapproval or waiver would require any action other than the payment of a nominal amount, and such action shall be subject to the consent of Parent, not to be unreasonably withheld),
(iv) execute the defending of any lawsuits or deliver other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and
(v) the execution and delivery of 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 foregoingforegoing Parent, Sub and the Company and its Board their respective Boards of Directors shall, if any state takeover statute or similar Legal Requirement is or statute becomes applicable to this Agreement, the AcquisitionOffer, this Agreement the Merger or any of the other transactions contemplated by this Agreement, use take all action necessary, with the reasonable best efforts cooperation of the other parties hereto if reasonably requested, to ensure that the Acquisition 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 Legal Requirement statute or regulation on this Agreement, the Acquisition (including Offer, the Merger and the other transactions contemplated by seeking a waiver of this Agreement. The Company shall give Parent the application opportunity to participate, on an advisory basis, in the defense of any such Legal Requirement, if available), this Agreement and stockholder litigation against the Company and/or its directors relating to the transactions contemplated herebyby this Agreement.
(b) In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other Regulatory Law with respect to the transactions contemplated hereby as promptly as practicable after the 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 any other Regulatory Law 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. "Regulatory Law" means the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other applicable 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 (i) foreign investment or (ii) actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
Appears in 1 contract
Sources: Merger Agreement (Yahoo Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things actions that are necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and (including those required under the making of Gaming Laws), make all necessary registrations, declarations and filings (including registrationsfilings, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of take all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suitAction by, claim, action, investigation or proceeding by any Governmental EntityEntity (including those required under the Gaming Laws) and, in the case of Parent and Merger Sub, obtain the necessary Gaming Licenses, (ii) 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 (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, execute and (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, hereby and fully to fully carry out the purposes of, of this Agreement. In connection with The parties agree to work together in a commercially reasonable fashion to identify and without limiting obtain those required consents, approvals or waivers from, or participate in other discussions or negotiations with, such third parties as the foregoing, parties reasonably deem appropriate for purposes of preserving the business relationships of the Company and its Board Subsidiaries following the consummation of Directors shallthe Merger. For purposes of clarity, if no consent, waiver or approval of any takeover statute or similar Legal Requirement is or becomes applicable third party (other than a Governmental Entity as required) (a “Third Party Consent” ) whether party to a Contract with the Acquisition, this Agreement Company or any of its Subsidiaries or otherwise shall be a condition or requirement of the transactions contemplated by this Agreement; provided, use reasonable best efforts at the explicit written instruction of Parent the Company shall seek to ensure obtain a Third Party Consent with the understanding that the Acquisition Parent first waive any consequences under this Agreement with respect to such action and any fee, penalty or other consideration in connection with obtaining any such Third Party Consent shall be only be paid by Parent and at Parent’s sole discretion. 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 and subject to all confidentiality obligations hereunder and in the Confidentiality Agreement, 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 (but not as to any individual applicant for a finding of suitability), as the case may be, 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 Merger and the other transactions contemplated by this Agreement may be consummated Agreement. In exercising the foregoing rights, each of Parent and the Company shall act reasonably and as promptly as practicable on practicable. Subject to applicable Law and the terms contemplated by this Agreement instructions of any Governmental Entity and otherwise subject to minimize all confidentiality obligations hereunder and in the effect of such Legal Requirement on Confidentiality Agreement, the Acquisition (including by seeking a waiver Company and Parent shall keep each other reasonably apprised of the application 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 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 such Legal Requirementfiling, if available), this Agreement and investigation or other inquiry in connection with the transactions contemplated hereby.
(b) To the extent any of the covenants in this Merger Agreement constitute restrictions on transfer or agreements not to encumber the stock or other equity securities of the Company or any of its Subsidiaries which are licensed by or registered with the Nevada gaming authorities (including, without limitation, Section 5.1(b) without giving effect to the proviso at the end of such Section), the Company shall take all steps necessary to apply for approval of such restrictions and agreements no later than five (5) Business Days after the execution of this Agreement and shall use its reasonable best efforts to obtain such approval no later than 20 Business Days after the filing of such application with the Chairman of the Nevada State Gaming Control Board. Promptly upon receipt of such written approval, the Company shall furnish a copy to Parent.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation or vigorously defend an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act and State Takeover Approvals), (iiiii) obtain 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, the Stock Option Agreement or the consummation of the transactions contemplated hereby and thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. No party to this Agreement shall consent to any voluntary delay of the consummation of the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld. In connection with and without limiting the foregoingaddition, the Company and shall use its Board best efforts to obtain the waiver, cancellation or voluntary termination of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable the registration rights listed on Schedule 3.2(b) prior to the AcquisitionClosing by the holders thereof to the extent that they would otherwise be outstanding after the Merger.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Each party shall use all reasonable best efforts to refrain from taking any action or failing to take any action, which action or failure to act would cause, or would be reasonably likely to cause, the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.
(d) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Merger and to consummate the other transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, the Company or any of the transactions contemplated by this Agreementbusinesses, use reasonable best efforts to ensure product lines or assets of Parent or any of its Subsidiaries or that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable otherwise would have a Material Adverse Effect on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyParent.
Appears in 1 contract
Sources: Merger Agreement (Mecon Inc)
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinherein provided, each of the parties Company, Parent and Merger Sub agrees to use reasonable best efforts to take, or cause to be taken, all actionsaction, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement without (unless Parent shall otherwise agree) the occurrence of any of the conditions or actions referred to as expeditiously as possible after the date hereof being sought in Section 6.2(k) (and in any event before the Termination Datenone of which Parent or Merger Sub shall be required to agree to), the Acquisition including but not limited to (i) obtaining all consents, approvals and authorizations and the making of all necessary filings and registrations required for or in connection with the consummation by the parties hereto of the transactions contemplated by this Agreement, (ii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of any of the transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI seeking to be satisfied, (ii) obtain all necessary actions have any stay or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 temporary restraining order entered by any court or other Governmental Entity, Entity vacated or reversed and (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, the execution and (iv) execute or deliver delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, Parent and/or the Surviving Corporation shall cause the proper officers and directors of the Company, Parent and Merger Sub hereto to take all such action. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any shall (A) use their respective best efforts to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the AcquisitionMerger, this Agreement or any of the other transactions contemplated by this Agreement and (B) if any state takeover statute or similar statute or regulation becomes applicable to the Merger, this Agreement or any other transaction contemplated by this Agreement, use reasonable their respective best efforts to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition (including Merger and the other transactions contemplated by seeking a waiver this Agreement. Notwithstanding the foregoing, the Board of Directors shall not be prohibited from taking any action permitted by Section 5.9(b). In the application of event any such Legal Requirementlitigation is commenced by any person involving the Company, if available), this Agreement Parent or Merger Sub and relating to the transactions contemplated herebyby this Agreement, including any other proposal for a Takeover Proposal (as defined in Section 5.9), the Company, Parent or Merger Sub shall have the right, at its own expense, to participate therein.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of Parent and the parties Company agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger, the Holding Company Merger, the Bank Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions precedent set forth in Article ARTICLE VI to be satisfied, ; (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders Orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings with Governmental Entities (including the “Requisite Regulatory Approvals”); (iii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals from Persons other than Governmental Entities and the making of all necessary registrations, declarations and filings with Governmental Entitiessuch Persons, if any; and (iv) and, subject to the limitations set forth herein, the taking of all commercially reasonable steps and remedies as may be necessary to avoid any suit, claim, action, investigation or proceeding Action by any Governmental Entity.
(b) Notwithstanding anything in this Agreement to the contrary, (iiii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (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, neither Parent nor the Company and its Board of Directors shall, if shall be obligated to contest any takeover statute final action or similar Legal Requirement is or becomes applicable to decision taken by any Governmental Entity challenging the Acquisition, this Agreement or any consummation of the transactions contemplated by this Agreement, use (ii) in no event shall Parent or any of its Affiliates be required to offer or pay any consideration or agree to any requirement, restriction, covenant, undertaking, limitation or divestiture of any kind whatsoever as a condition to obtaining the Requisite Regulatory Approvals (other than, in the case of the Specified Requisite Regulatory Approvals, ministerial conditions which impose, in Parent’s reasonable best efforts judgment, no burden (other than a de minimis burden) on Parent, the Company, or any of their Subsidiaries, Affiliates or assets) or in order to ensure that avoid, prevent or terminate any action by any Governmental Entity which would restrain, enjoin or otherwise prevent consummation of the Acquisition and the other transactions contemplated by this Agreement Agreement, (iii) the Company shall not, without Parent’s prior written consent, take or agree to take any action described in clause (i) or (ii) immediately above, and (iv) the condition in Section 6.3(d) shall not be deemed satisfied if any Requisite Regulatory Approval contains any conditions or restrictions other than in the case of the Specified Requisite Regulatory Approvals ministerial conditions which impose, in Parent’s reasonable judgment, no burden (other than a de minimis burden) on Parent, the Company, or any of their Subsidiaries, Affiliates or assets.
(c) Parent and the Company will, upon request, furnish the other party with all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be consummated as promptly as practicable reasonably necessary or advisable in connection with any filing, notice or application made by or on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application behalf of any such Legal Requirement, if available), this Agreement and other party or any of its Subsidiaries with or to any third party or Governmental Entity in connection with the transactions contemplated hereby.
(d) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
Appears in 1 contract
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 set forth hereinof this Agreement (including Section 5.3(e)), each of the parties agrees hereto shall cooperate with the other parties and use (and shall cause their respective Subsidiaries to use use) their respective reasonable best efforts to promptly (i) take, or cause to be taken, all actions, and to do, or cause to be done, all things, necessary, proper or advisable to cause the conditions to Closing to be satisfied as promptly as practicable and to assist consummate and cooperate with make effective, in the most expeditious manner 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 parties hereto in doingdocuments, and (ii) obtain all things approvals, consents, registrations, permits, authorizations and other confirmations from any Governmental or Regulatory Authority or third party necessary, proper or advisable to consummate the Transactions.
(b) In furtherance and make effective, as expeditiously as possible after the date hereof (and not in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making limitation of all necessary registrations, declarations 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 (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 Parent shall each use its Board of Directors shall, if any reasonable best efforts to (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement Law is or becomes applicable to the Acquisition, this Agreement or any of the transactions contemplated by this AgreementTransactions and (ii) if any state takeover statute or similar Law becomes applicable to any of the Transactions, use reasonable best efforts take all action necessary to ensure that the Acquisition and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement Law on the Acquisition Transactions.
(including by seeking a waiver c) In furtherance and not in limitation of the application covenants of the parties contained in this Section 5.3, each of the parties hereto shall promptly, but in no event later that ten (10) Business Days after the date of this Agreement, make all filings and notifications required to be made, and seek all consents required to be obtained under antitrust or competition law in those jurisdictions, if any, identified in Schedule 4.3. Neither party shall take any action that would extend any applicable waiting period or agree with any Governmental or Regulatory Authority not to consummate the Transactions for any period of time, without the written consent of the other party.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental or Regulatory Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental or Regulatory Authority relating to the Transactions, including any proceeding initiated by a private party, and (ii) promptly keep the other party informed of, and, subject to an appropriate agreement to limit disclosure to counsel, provide copies of, any material communication received by such party from, or given by such party to, any Governmental or Regulatory Authority, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions or any investigation or inquiry relating to the Transactions. Subject to an appropriate agreement to limit disclosure to counsel, each of the parties hereto shall have the right to review in advance, and to the extent practicable each will consult the other in advance and consider in good faith the views of the other regarding, any material filing made with, or written materials submitted to, or oral communications with, any third party and/or any Governmental or Regulatory Authority in connection with the Transactions or any investigation or inquiry relating to the Transactions. Except as may be prohibited by any Governmental or Regulatory Authority, each of the parties hereto shall permit authorized representatives of the other party to be present at each meeting or conference relating to such Legal Requirementinvestigation or inquiry.
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.3, each of the parties hereto shall use its reasonable best efforts to (i) provide as promptly as reasonably practicable all information reasonably requested by any Governmental or Regulatory Authority, and (ii) resolve such objections, if availableany, as may be asserted by a Governmental or Regulatory Authority or other Person with respect to the Transactions. Notwithstanding the foregoing or any other provision of this Agreement, the Company shall not be required to agree to a divestiture of any business or assets or any restriction on its business that is binding on the Company unless the Transactions are consummated, and the Company shall not, without Parent’s prior written consent, commit to any divestiture or agree to any restriction on its business, and nothing in this Section 5.3 shall (x) limit any applicable rights a party may have to terminate this Agreement pursuant to Section 7.1 so long as such party has up to then complied in all material respects with its obligations under this Section 5.3, or (y) require Parent to offer, accept or agree to (A) divest, dispose or hold separate any part of its or the Company’s businesses, operations, assets or product lines (or a combination of Parent’s and the Company’s respective businesses, operations, assets or product lines), (B) not compete in any geographic area or line of business, (C) restrict the manner in which, or whether, Parent, the Company, the Surviving Corporation or any of their Affiliates may carry on business in any part of the world, or which would have a material adverse effect on the Company, Parent or the Surviving Corporation and/or (D) require any party to this Agreement and the transactions contemplated herebyto contest or otherwise resist any administrative or judicial action or proceeding.
Appears in 1 contract
Sources: Merger Agreement (Verenium Corp)
Reasonable Best Efforts. Subject (a) Prior to the express provisions of Section 5.4 and Section 5.7 hereofClosing, and upon the other terms and subject to the conditions set forth hereinof this Agreement, each of Parent, Sub and the parties agrees Company agree to use their respective reasonable best efforts (x) to take, or cause to be taken, all actions, and (y) 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 (subject to any Applicable Laws) to consummate and make effectiveeffective the Merger and the other Transactions as promptly as practicable including, but not limited to (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the other Transactions and the taking of such actions as expeditiously as possible are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party or Governmental Entity, (ii) the preparation of any disclosure documents reasonably 33 39 requested by Parent in order to facilitate financing of any of the Transactions and (iii) the satisfaction of the other parties' conditions to Closing. In addition, no party hereto shall take any action after the date hereof (and that would reasonably be expected to delay materially the obtaining of, or result in not obtaining, any event before permission, approval or consent from any Governmental Entity necessary to be obtained prior to Closing. Notwithstanding the Termination Date)foregoing, or any other covenant herein contained, in connection with the receipt of any necessary approvals under the HSR Act, neither the Company nor any Company Subsidiary shall be entitled to divest or hold separate or otherwise take or commit to take any action that limits Parent's or Sub's freedom of action with respect to, or their ability to retain, the Acquisition Company or any Company Subsidiary or any material portions thereof or any of the businesses, product lines, properties or assets of the Company or any Company Subsidiary, without Parent's prior written consent.
(b) Prior to the Closing, subject to Applicable Law, each party shall promptly consult with the other parties hereto with respect to, provide any necessary information with respect to, and provide the other parties (or their respective counsel) with copies of, all filings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement, the Merger and the other transactions contemplated by Transactions. Each party hereto shall promptly inform the other parties of any communication from any Governmental Entity regarding any of the Transactions. If any party hereto or Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity with respect to any of the Transactions, then such party shall endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other parties, an appropriate response in compliance with such request. To the extent that transfers, amendments or modifications of Permits (including Environmental Permits) are required as a result of the execution of this AgreementAgreement or consummation of any of the Transactions, including by using the Company shall use its reasonable best efforts to: to effect such transfers, amendments or modifications.
(ic) cause The Company and Parent shall file, as soon as practicable, notifications under the conditions precedent set forth in Article VI HSR Act and respond as promptly as practicable to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations any inquiries received from Governmental Entities the Federal Trade Commission and the making Antitrust Division of the Department of Justice for additional information or documentation and respond as promptly as practicable to all necessary registrations, declarations inquiries and filings (including registrations, declarations and filings with requests received from any State Attorney General or other 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 (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 Entity in connection with and without limiting antitrust matters. Concurrently with the foregoingfiling of notifications under the HSR Act or as soon thereafter as practicable, the Company and its Board Parent shall each request early termination of Directors shallthe HSR Act waiting period.
(d) Notwithstanding the foregoing, if any takeover statute or similar Legal Requirement is or becomes applicable to the Acquisitionexcept as provided in Section 7.1(b)(ii), nothing contained in this Agreement shall be deemed to require the Company, Parent or Sub to commence any litigation against any entity in order to facilitate the consummation of any of the transactions contemplated Transactions or to defend against any litigation brought by this Agreement, use reasonable best efforts any Governmental Entity seeking to ensure that prevent the Acquisition 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 consummation of such Legal Requirement on the Acquisition (including by seeking a waiver any of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyTransactions.
Appears in 1 contract
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth herein, each (a) Each of the parties agrees to Parties hereto shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, fulfill as expeditiously promptly as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause practicable the conditions precedent set forth in Article VI to be satisfiedthe obligations hereunder of the Buyer or the Sellers, (ii) obtain as the case may be, including obtaining, giving or making, as applicable, all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrationswaivers, declarations authorizations, notices and filings (including registrations, declarations and filings required in connection 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated byhereby. The Company and the Buyer will consult and cooperate with one another in good faith in connection therewith, including by providing drafts of any requests for consents, approvals, waivers and authorizations, and of any notices or filings, to fully carry out the purposes ofBuyer (in the case of the Company) or the Sellers’ Representative (in the case of the Buyer) and their respective advisors and, this Agreement. In if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection with and without limiting therewith.
(b) Notwithstanding the foregoing, the Company and its Board of Directors shallParties agree that, if any takeover statute or similar Legal Requirement is or becomes applicable to the Acquisitionextent any filings or submissions are required by the Competition Act (Canada), this Agreement the Investment Canada Act or U.S. Antitrust Laws after Closing, the Buyer shall be entitled to control and direct the making of any such filings and submissions and the resolution of any investigation or other inquiry by any Government Entity under such Laws with respect to the transactions contemplated by this Agreementhereby, use reasonable best efforts to ensure that in each case consulting with the Acquisition Sellers’ Representative, as appropriate, and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on Sellers shall furnish to the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver Buyer all information reasonably necessary or desirable in connection therewith after Closing. Each of the application Buyer and the Company shall promptly inform the Sellers’ Representative (in the case of the Buyer) or the Buyer (in the case of the Company) of any such Legal Requirementcommunication with, if available)and any proposed undertaking, this Agreement and understanding or agreement with, or condition of, any Government Entity with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (J2 Global Communications Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third partiesparties other than Governmental Entities (provided that if obtaining any such consent, including all Necessary Consentsapproval or waiver would require any action other than the payment of a nominal amount, and such action shall be subject to the consent of Parent, not to be unreasonably withheld), (iv) execute the defending of any lawsuits or deliver other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution and delivery of 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 foregoingforegoing Parent, Sub and the Company and its Board their respective Boards of Directors shall, if any state takeover statute or similar Legal Requirement is or statute becomes applicable to this Agreement, the Acquisition, this Agreement Merger or any of the other transactions contemplated by this Agreement, use take all action necessary, with the reasonable best efforts cooperation of the other parties hereto if reasonably requested, to ensure that the Acquisition 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 Legal Requirement statute or regulation on this Agreement, the Acquisition (including Merger and the other transactions contemplated by seeking a waiver of this Agreement. The Company shall give Parent the application opportunity to participate, on an advisory basis, in the defense of any such Legal Requirement, if available), this Agreement and stockholder litigation against the Company and/or its directors relating to the transactions contemplated herebyby this Agreement.
(b) In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other Regulatory Law with respect to the transactions contemplated hereby as promptly as practicable after the 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 any other Regulatory Law and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods 40
Appears in 1 contract
Sources: Merger Agreement (TMP Worldwide 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 set forth hereinin this Agreement, each of the Company, the ESOP 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 agrees 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, including the Company Approvals and the ESOP 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 the ESOP to be obtained in respect of the Company Material Contracts in connection with 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 the ESOP’s and Merger Sub’s obligations hereunder, except with respect to the consents set forth on Section 6.1(d) of the Company Disclosure Schedule), (iii) the defending of 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 and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement; provided, however, that in no event shall the ESOP, Merger Sub, 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 agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and the ESOP shall (i) promptly, (A) 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, and (B) but in no event later than thirty (30) days after the date hereof, make their respective filings and thereafter make any other required submissions under the with the FCC to obtain the FCC Order (the “FCC Applications”), (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, all actions, other actions and to do, or cause to be done, and to assist and cooperate with the all other parties hereto in doing, all things necessary, proper or advisable to consummate and make effectiveeffective the transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as expeditiously the FCC, 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 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 possible after the date hereof (and in any event before no later than the Termination DateEnd Date (as hereinafter defined)), including, without limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, trust or otherwise, the Acquisition sale, divestiture or disposition of such assets or businesses of the ESOP or its Subsidiaries or affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take actions that after the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause Closing Date would limit the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions freedom of the ESOP or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings its Subsidiaries’ (including registrationsthe Surviving Corporation’s) or affiliates’ freedom of action with respect to, declarations and filings with Governmental Entitiesor its ability to retain, if anyone or more of its or its Subsidiaries’ (including the Surviving Corporation’s) andbusinesses, subject to the limitations set forth hereinproduct lines or assets, the taking of all steps and remedies in each case as may be necessary required in order to avoid the entry of, or to effect the dissolution of, any suitinjunction, claim, action, investigation temporary restraining order or other order in any suit or proceeding by any Governmental Entitywhich would otherwise have the effect of preventing or materially delaying the Closing, (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute or deliver promptly inform the other party upon receipt of any additional instruments necessary to consummate material communication from the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoingFCC, the Company and its Board United States Federal Trade Commission, the Antitrust Division of Directors shall, if the United States Department of Justice or any takeover statute or similar Legal Requirement is or becomes applicable to the Acquisition, this Agreement or other Governmental Entity regarding any of the transactions contemplated by this Agreement, use reasonable best efforts Agreement and (v) subject to ensure that the Acquisition applicable legal limitations and 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 the ESOP, 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 the ESOP 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 the ESOP 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 by this Agreement may without the prior written consent of the other party (such consent not to be consummated as promptly as practicable on unreasonably withheld, conditioned or delayed).
(c) In furtherance and not in limitation of the terms 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 instituted) challenging any transaction contemplated by this Agreement and otherwise to minimize the effect as violative of such Legal Requirement on the Acquisition (including by seeking a waiver any Regulatory Law, each of the application of Company and the ESOP shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such Legal Requirementaction or proceeding and to have vacated, if available)lifted, this Agreement 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 herebyby this Agreement. Notwithstanding the 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 such party has, prior to such termination, complied with its obligations under this Section 5.6.
(d) For purposes of this Agreement, “Regulatory Law” means the Communications Act, the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ 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 (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) regulate media ownership or (iii) protect the national security or the national economy of any nation.
Appears in 1 contract
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 set forth hereinof this Agreement, each of the parties agrees hereto shall cooperate with the other parties and use (and shall cause their respective Subsidiaries to use use) their respective reasonable best efforts to (i) take, or cause to be taken, all actions, and to do, or cause to be done, all things, necessary, proper or advisable to cause the conditions set forth in ARTICLE V to be satisfied as promptly as practicable and to assist consummate and cooperate with make effective, in the most expeditious manner 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 parties hereto in doingdocuments and (ii) obtain all approvals, all things consents, registrations, permits, authorizations and other confirmations from any Governmental Authority necessary, proper or advisable to consummate and make effectivethe Transactions; provided that in no event shall Parent or Purchaser be required by this Section 4.3(a) or any other provision of this Agreement to (A) license, as expeditiously as possible after divest, dispose of or hold separate any material portion of the date hereof (and Purchased Assets or the assets or businesses of Parent, Purchaser or any other Subsidiary of Purchaser or otherwise take or commit to take any action that limits in any event before respect its freedom of action with respect to, or its ability to retain, any material portion of the Termination Date)Purchased Assets or the assets or businesses of Parent, Purchaser or any other Subsidiary of Purchaser, or that would have an adverse effect on Parent, Purchaser or any other Subsidiary of Purchaser after giving effect to the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfiedTransactions, (iiB) obtain all necessary actions agree to or nonactionseffect any license, waiversdivestiture, consentsdisposition or hold separate any business, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if anyC) and, subject to the limitations set forth herein, the taking of all steps and remedies as may be necessary to avoid initiate any suit, claim, action, investigation action or proceeding against any Governmental Authority or third party or defend any action that shall have been initiated by any Governmental EntityAuthority or third party (including any shareholders of the Seller, whether brought directly, derivatively or otherwise) or (iiiD) obtain all necessary pay any material amounts in connection with seeking or obtaining such consents, approvals or waivers from third parties, including all Necessary Consents, authorizations as are required to complete the Transactions.
(b) In furtherance and (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 not in limitation of the foregoing, each of the Company and parties hereto shall each use its Board of Directors shall, if any reasonable best efforts to (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement Law is or becomes applicable to the Acquisition, this Agreement or any of the transactions contemplated by this AgreementTransactions and (ii) if any state takeover statute or similar Law becomes applicable to any of the Transactions, use reasonable best efforts take all action necessary to ensure that the Acquisition and the other transactions contemplated by this Agreement Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement Agreement, and use their reasonable best efforts to otherwise to minimize the effect of such Legal Requirement Law on the Acquisition Transactions.
(including by seeking a waiver c) Subject to the terms and conditions of this Agreement, each of the application parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private party and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions. Subject to applicable Laws relating to the exchange of information, each of the parties hereto shall have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other parties and their respective 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 Authority in connection with the Transactions; provided, however, that the parties may designate certain of such filings, or certain information contained therein, as being provided on an outside counsel basis only. No party hereto shall independently participate in any meeting or discussion with any Governmental Authority in respect of any such Legal Requirementfilings, if availableapplications, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by the relevant Governmental Authority, the opportunity to attend and participate (which, at the request of any of the parties, shall be limited to outside antitrust counsel only).
(d) The Seller shall use its reasonable best efforts, this Agreement and shall cause its Affiliates to use reasonable best efforts, to (i) facilitate the transfer to Purchaser at Closing of all: (A) regulatory files and permits related to the Boulder Facilities (including all environmental permits/waste water discharge permits) and (B) the Purchased Assets Regulatory Documentation (and Purchaser’s ability to reference all Purchased Assets Regulatory Documentation) and (ii) file or transmit, as applicable, such notices, letters, instruments and the transactions contemplated herebylike with or to the FDA and any other applicable Regulatory Authority to the Transactions as may required to comply with all applicable Laws, and to effectuate such transfers and vest all right, title, and interest in (x) the First Closing Assets in Purchaser promptly following the First Closing and (y) the Second Closing Assets effective as of the Second Closing.
(e) The Seller shall cooperate with Parent or Purchaser in obtaining the written consent of the licensor identified in Section 2.16(a) of the Seller Disclosure Schedules to an assignment of the license agreement set forth in Section 2.16(a) of the Seller Disclosure Schedules to Parent or Purchaser in connection with the manufacture, practice, use, offer for sale, import and sale of the Key Products, such assignment to be effective as of the Second Closing or as promptly as practicable thereafter, and on substantially similar terms as the license agreement set forth in Section 2.16(a) of the Seller Disclosure Schedules.
Appears in 1 contract
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 set forth hereinin this Agreement, each of the parties agrees to hereto shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessaryunder such party’s control or which such party is required to do under this Agreement, proper or advisable is necessary to do, to consummate and make effective, as expeditiously soon as possible after the date hereof (and in any event before the Termination Date)reasonably practicable, the Acquisition Merger and the other transactions contemplated by this Agreementhereby, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity in connection with the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby, (iiiii) obtain obtaining all necessary consents, approvals or waivers from third partiesparties in connection with the execution, including all Necessary Consentsdelivery or performance of this Agreement or the consummation of the transactions contemplated hereby, (iii) defending 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) execute or deliver executing and delivering any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In connection with and without Without limiting the foregoingobligations set forth in this Section 6.7, and except as expressly permitted by this Agreement, neither Parent nor the Company and its Board of Directors shall, if nor shall Parent or the Company permit any takeover statute of its Subsidiaries or similar Legal Requirement is controlled Affiliates to, knowingly or becomes applicable intentionally take any action that would reasonably be expected to prevent or materially delay the Acquisition, this Agreement or any consummation of the transactions contemplated by this Agreement, including any action that would make it more likely that any of the conditions to the consummation of the transactions contemplated hereby would not be satisfied, including the receipt of any authorization, consent, order, declaration or approval of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period; provided, however, that nothing in this Section 6.7 shall require any party hereto to waive any condition set forth in Article VII.
(b) Each of the parties hereto shall, (i) as promptly as practicable and before the expiration of any relevant legal deadline, but in no event later than fifteen (15) Business Days following the execution and delivery of this Agreement, file with the FTC and the DOJ, the notification and report form required for the transactions contemplated hereby and any supplemental information requested in connection therewith pursuant to the HSR Act, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act, and (ii) as promptly as practicable and before the expiration of any legal deadline, but in no event later than fifteen (15) Business Days following the execution and delivery of this Agreement, file with any other Governmental Entity, any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any other Antitrust Laws. Each of the parties hereto shall furnish to each other’s counsel such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act and any other Antitrust Laws. Each of the parties hereto shall promptly and timely respond to a request for additional information from the DOJ or the FTC. 48
(c) Each of the parties hereto shall use its reasonable best efforts to obtain promptly any clearance required under the HSR Act and any other Antitrust Laws for the consummation of the Merger and the other transactions contemplated hereby and shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and other Governmental Entities and shall comply promptly with any such inquiry or request. Each of the parties hereto shall use its reasonable best efforts to avoid or eliminate any impediment under any Antitrust Law, or regulation or rule, that may be asserted by any Governmental Entity, or any other Person, with respect to the transaction contemplated by this Agreement so as to enable the closing of the contemplated transaction to occur expeditiously. Each of the parties hereto shall use its reasonable best efforts to defend through litigation on the merits any claim asserted in any court, administrative tribunal or hearing that the transaction contemplated would violate any Law, or any regulation or rule of any Governmental Entity, in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary, or permanent) that would restrain or prevent consummation of the transaction. Each of the parties hereto commits to instruct its counsel to cooperate with each other party hereto and its counsel and use reasonable best efforts to ensure that facilitate and expedite the Acquisition identification and resolution of any such issues and, consequently, the expiration of the applicable HSR Act waiting period and the waiting periods under any other Antitrust Laws at the earliest practicable dates. Such reasonable best efforts and cooperation shall include counsel’s undertaking (i) to keep each other appropriately informed of communications from and to personnel of the reviewing antitrust authority, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of such antitrust authority.
(d) Each party hereto shall (i) give the other parties prompt notice of the commencement of any legal or other proceeding by or before any Governmental Entity (including the OCS, the Investment Center, the Companies Registrar, the FTC, the DOJ and the SEC) with respect to the Merger or any of the other transactions contemplated by this Agreement, (ii) promptly inform the other parties of any communication with any Governmental Entity regarding the Merger or any of the other transactions contemplated by this Agreement may be consummated and (iii) keep the other parties informed as promptly as practicable on to the terms status of any such proceeding or communication. Each party hereto shall consult and cooperate with each other in connection with any analysis, appearance, discussion, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any proceeding or communication relating to the Merger or any of the other transactions contemplated by this Agreement and otherwise Agreement. In addition, except as may be prohibited by any Governmental Entity or by any legal requirement, in connection with any such proceeding relating to minimize the effect of any such Legal Requirement on the Acquisition (including by seeking a waiver Governmental Entity, each party hereto will permit authorized representatives of the application other party to be present at each meeting or conference or telephone call relating to any such proceeding 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 any such proceeding. 49
(e) Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall any party hereto be obligated to commit to and/or effect, by consent decree, consent order, hold separate order, or otherwise (i) the sale, divestiture, disposition, or holding separate, of any such Legal Requirementof its assets, if availableproperties, businesses, or holdings; or (ii) any conduct restriction, prohibition, or other negative or affirmative requirement, that in the case of either of clauses (i) or (ii) is or would reasonably be expected to be materially adverse to the business, financial condition or results of operations of Parent and its Subsidiaries, including in any event Bserv, Inc., and its Subsidiaries, taken as a whole (after giving effect to the Merger), this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Fundtech LTD)
Reasonable Best Efforts. Subject (a) Prior to the express provisions of Section 5.4 and Section 5.7 hereofClosing, and upon the other terms and subject to the conditions set forth hereinof this Agreement, each of Parent, Purchaser and the parties agrees Company agree to use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable (subject to any applicable laws) to consummate and make effectiveeffective the Merger and the other Transactions as promptly as practicable including, but not limited to (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the other Transactions and the taking of such actions as expeditiously as possible are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party or Governmental Entity, (ii) the preparation of any disclosure documents reasonably requested by Parent in order to facilitate financing of any of the Transactions and (iii) the satisfaction of the other parties' conditions to Closing. In addition, no party hereto shall take any action after the date hereof (and that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any event before the Termination Date)permission, the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI approval or consent from any Governmental Entity necessary to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject obtained prior 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this AgreementClosing. In connection with and without limiting Notwithstanding the foregoing, or any other covenant herein contained, in connection with the receipt of any necessary approvals under the HSR Act, neither the Company and its Board nor any of Directors shallthe Company Subsidiaries shall be entitled to divest or hold separate or otherwise take or commit to take any action that limits Parent's or Purchaser's freedom of action with respect of, if any takeover statute or similar Legal Requirement is or becomes applicable their ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated Company Subsidiaries or any material portions thereof or any of the businesses, product lines, properties or assets of the Company or any of the Company Subsidiaries, without Parent's prior written consent.
(b) Prior to the Closing, each party shall promptly consult with the other parties hereto with respect to, provide any necessary information with respect to, and provide the other parties (or their respective counsel) with copies of, all filings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.other
Appears in 1 contract
Sources: Merger Agreement (U S Realtel Inc)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as practicable, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated hereby or thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (ivv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company each party hereto and its Board of Directors shall, if any shall (1) take all action reasonably necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement, the Acquisition, this Agreement Merger or any of the other transactions contemplated by this Agreement and (2) if any state takeover statute or similar statute becomes applicable to this Agreement, the Merger or any other transactions contemplated by this Agreement, use reasonable best efforts take all action reasonably necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on this Agreement, the Acquisition (including Merger and the other transactions contemplated by seeking this Agreement. Nothing in this Agreement shall be deemed to require a waiver party hereto to agree to, or proffer to, divest or hold separate any assets or any portion of any business of such entity, any other party hereto, such party or any of their respective Subsidiaries if the Board of Directors of a party hereto determines that so doing would materially impair the benefit intended to be obtained by such party in the Merger. Without limiting the generality of the application foregoing, each party hereto shall give the other party hereto the opportunity to participate in the defense of any such Legal Requirement, if available), this Agreement and litigation against it and/or its directors relating to the transactions contemplated herebyby this Agreement. This Section 5.05 shall be deemed not to have been breached by the Company as a result of any action taken by the Company with respect to a Superior Proposal that is expressly permitted under Section 4.02.
Appears in 1 contract
Sources: Merger Agreement (Allied Riser Communications Corp)
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 conditions herein --- ----------------------- provided for the conditions set forth hereinCompany, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actionsappropriate action, 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 applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement. In case at any time after Closing Date any further action is necessary or desirable to carry out the purposes of this Agreement, including by using the proper officers and directors of each party to this Agreement shall take all such necessary action. Such reasonable best efforts to: shall include, without limitation, (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making obtaining of all necessary registrations, declarations 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, parties and (iv) execute or deliver any additional instruments governmental authorities necessary to consummate the consummation of the transactions contemplated byby this Agreement and (ii) opposing vigorously any litigation or administrative proceeding relating to this Agreement or the transactions contemplated hereby, including, without limitation, promptly appealing any adverse court or
(b) The Company shall give and make all required notices and reports to fully carry out the purposes of, this Agreement. In connection appropriate persons with respect to the Permits and without limiting Environmental Permits that may be necessary for the foregoing, consummation of the Investment Transactions.
(c) The Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement or any of the Acquisition, transactions hereby and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any of the transactions contemplated by this Agreementhereby, use reasonable best efforts take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyby this Agreement.
Appears in 1 contract
Reasonable Best Efforts. Subject (a) Prior to the express provisions of Section 5.4 and Section 5.7 hereofClosing, and upon the other terms and subject to the conditions set forth hereinof this Agreement, each of Purchaser and the parties agrees Company agree to use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary and appropriate, under applicable laws to assist consummate and cooperate make effective the Transactions as promptly as practicable including, but not limited to (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Transactions and the taking of such actions as are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party or Governmental Entity, and (ii) the satisfaction of the other parties' conditions to Closing. In addition, no party hereto shall take any action after the date hereof 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.
(b) Prior to the Closing, each party shall promptly consult with the other parties hereto in doingwith respect to, provide any necessary information with respect to, and provide the other (or its counsel) copies of, all things necessaryfilings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement and the Transactions. Each party hereto shall promptly inform the other of any communication from any Governmental Entity regarding any of the Transactions unless otherwise prohibited by law. If any party hereto or affiliate thereof receives a request for additional information or documentary material from any such Government Entity with respect to the Transactions, proper then such party shall endeavor in good faith to make, or advisable cause to consummate and make effectivebe made, as expeditiously soon as possible reasonably practicable and after consultation with the date hereof other party, an appropriate response in compliance with such request. To the extent that transfers, amendments or modifications of Permits (and in any event before including environmental Permits) are required as a result of the Termination Date)execution of this Agreement or consummation of the Transactions, the Acquisition and the other transactions contemplated by this Agreement, including by using Company shall use its reasonable best efforts to: to effect such transfers.
(ic) cause For purposes of this Section 7.9, "reasonable best efforts" of Parent shall not require Parent to agree to any prohibition, limitation, or other requirement which would prohibit or materially limit the conditions precedent set forth in Article VI to be satisfiedownership or operation by the Company or any of the Company Subsidiaries, (ii) obtain all necessary actions or nonactionsby Parent, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making Purchaser or any of Parent's subsidiaries of all necessary registrationsor any portion of the business or assets of the Company or any of the Company Subsidiaries or Parent or any of its Subsidiaries, declarations and filings (including registrationsor compel Purchaser, declarations and filings with Governmental EntitiesParent or any of Parent's subsidiaries to dispose of or hold separate all or any portion of the business or assets of 57 the Company or any of the Company Subsidiaries or Parent or any of its Subsidiaries. The Company shall not agree to any such prohibition, if any) andlimitation, subject to or other requirement without the limitations set forth herein, the taking prior written consent 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this AgreementParent. In connection with and without 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, nothing in this Agreement or shall require Purchaser to defend against any litigation brought by any Governmental Entity seeking to prevent the consummation of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyTransactions.
Appears in 1 contract
Sources: Merger Agreement (Cendant Corp)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to ----------------------- the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement and the Option Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain 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 Option Agreement or the consummation of the transactions contemplated by this Agreement or the Option Agreement, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement and the Option Agreement. .
(b) In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any Lucent shall (i) take all action reasonably necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the AcquisitionMerger, this Agreement, the Option Agreement or any of the other transactions contemplated by this Agreement or the Option Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to the Merger, this Agreement, use reasonable best efforts the Option Agreement or any other transaction contemplated by this Agreement or the Option Agreement, take all action reasonably necessary to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement and the Option Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Option Agreement and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition (including Merger and the other transactions contemplated by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyOption Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ortel Corp/De/)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act, any other pre-merger filings and State Takeover Approvals), (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Offer or the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Offer, the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure businesses or assets of Parent or any of its Subsidiaries or that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable otherwise would have a Material Adverse Effect on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyCompany or Parent.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Oratec Interventions Inc)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this AgreementAgreement and to obtain satisfaction or waiver of the conditions precedent to the Merger, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with The Company further agrees to, and without limiting the foregoing, shall direct the Company Subsidiaries to, assist in obtaining customer and its Board other consents required as a result 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 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby. Subject to applicable law, the Company further agrees to, and shall direct the Company Subsidiaries to, reasonably assist and cooperate with Parent in any integration planning to take effect after consummation of the Merger; provided that any such integration planning takes place during normal business hours and does not unreasonably interrupt the operation of the business of the Company or the Company Subsidiaries as presently conducted. In addition, the Company further agrees to cooperate with Parent in connection with the implementation and assessment of internal controls over financial reporting to assist Parent with compliance with Section 404 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and to take such other actions reasonably requested by Parent to further compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the rules and regulations promulgated thereunder by the SEC and NYSE; provided that any such cooperation takes place during normal business hours and does not unreasonably interrupt the operation of the business of the Company as presently conducted. Nothing set forth in this Section 5.3(a) will limit or affect actions permitted to be taken pursuant to Section 4.2.
Appears in 1 contract
Reasonable Best Efforts. (a) Subject to the express terms and conditions of this Agreement (including the provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth herein5.2), each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions, action 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 advisable, under applicable Law or otherwise, to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 (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 effective the transactions contemplated by this Agreement, .
(b) Parent and Acquisition shall use reasonable best efforts to ensure that arrange the Acquisition and the other transactions contemplated by this Agreement may be consummated Debt Financing as promptly as practicable taking into account the Termination Date on the terms contemplated by this Agreement and otherwise conditions described in the Debt Commitment Letter, including their reasonable best efforts to minimize the effect of such Legal Requirement (i) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein (including any related flex provisions) or on other terms and conditions no less favorable to Parent and Acquisition, including with respect to conditionality, (ii) maintain in effect the Financing commitments, (iii) satisfy on a timely basis all conditions applicable to Parent and Acquisition in such definitive agreements that are within their respective control (including by seeking a waiver consummating the Equity Financing pursuant to the terms of the application Equity Commitment Letter), (iv) consummate the Financing at or prior to the Closing, and (v) enforce their rights under the Debt Commitment Letter. In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Parent shall use its reasonable best efforts to arrange to obtain any such Legal Requirementportion from alternative sources, if availableon terms, taken as whole, that are no more adverse to Parent and the Company as promptly as practicable following the occurrence of such event but in no event later than the last day of the Marketing Period. In furtherance of the provisions of this Section 5.6(b), one or more Debt Commitment Letters may be amended, restated, supplemented or otherwise modified or superseded at the option of Parent after the date of this Agreement but prior to the Effective Time by instruments (the “New Financing Letters”) which replace the existing Debt Commitment Letters and/or contemplate co-investment by or financing from one or more other or additional parties; provided, that the terms of the New Financing Letters (a) shall not expand upon the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letters, (b) shall not reasonably be expected to delay or hinder the Closing, (c) reduce the aggregate amount of available Debt Financing and (d) are no less favorable to Parent, the Surviving Corporation or Acquisition in any material respect than the terms set forth in the Debt Commitment Letters. In such event, the term “Debt Commitment Letters” as used herein shall be deemed to include the Debt Commitment Letters that are not so superseded at the time in question and the transactions contemplated hereby.New Financing Letters to the extent then in
Appears in 1 contract
Sources: Merger Agreement (Symbion Inc/Tn)
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 set forth hereinof this Agreement, each of the parties agrees to Company and Parent shall use their reasonable best efforts to take, or cause to be taken, all actions, 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 applicable Law to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) the taking of all acts necessary to cause the conditions precedent to the other party’s (viewing Parent and Merger Sub together) obligation to close set forth in Article VI 10 to be satisfiedsatisfied as promptly as practicable (and in any event prior to the End Date), (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making obtaining of all necessary registrations, declarations 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 partiesfrom, including and the giving of all Necessary Consentsrequired notices to, Third Parties (iii) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (iv) execute obtaining and maintaining all Permits required to be obtained from any Governmental Authority or deliver any additional instruments necessary other Third Party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided that, notwithstanding anything to the contrary in this Agreement, in no event shall Parent or any of its Affiliates be required to, and “reasonable best efforts” will in no event require, or be construed to require, Parent or any of its Affiliates to (A) initiate, litigate, challenge, defend or otherwise participate or take any action with respect to any Action by, and against or involving any Third Party or Governmental Authority with respect to fully carry out the purposes of, transactions contemplated by this Agreement. In , (B) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with and without limiting the foregoingtransactions contemplated by this Agreement, (C) otherwise take any other steps or actions to defend against, vacate, modify or suspend any injunction or order of any Governmental Authority, including any injunction related to a private cause of action that would prevent 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 consummation of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and (D) agree, propose, negotiate, offer, sell, divest, lease, license, transfer, dispose of or otherwise to minimize the effect of such Legal Requirement on the Acquisition encumber or hold separate (including by seeking establishing a waiver trust, licensing any Intellectual Property Rights or otherwise), or take any other action (including by providing its consent to permit the Company or any of its Subsidiaries to take any of the application foregoing actions), or otherwise proffer or agree to do any of the foregoing, with respect to any of the businesses, assets or properties of Parent, the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries, (E) terminate any existing relationships or contractual rights or obligations or (F) otherwise offer to take or offer to commit to take any action that would limit Parent’s or any of its Affiliates’ freedom of action with respect to, or ability to retain, operate or otherwise exercise full rights of ownership with respect to, businesses, assets or properties of Parent, the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries (or equity interests held by Parent or any of its Affiliates in entities with businesses, assets or properties) (any action in clauses (A) through (F), a “Regulatory Action”). At the request of Parent, the Company shall agree to divest, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of its Subsidiaries (but, absent such request, the Company shall not take any such Legal Requirementaction); provided that in no event shall the Company be required to take any such action described in this sentence that would not be conditioned on, if available)and effective upon or after, this Agreement and the transactions contemplated herebyoccurrence of the Closing.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, 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 set forth hereinof this Agreement and applicable Law, each of the parties agrees to shall act in good faith and use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effectiveeffective the transactions contemplated by this Agreement as soon as practicable. Without limiting the foregoing, as expeditiously as possible after the date hereof parties shall, and shall cause their respective subsidiaries, and use reasonable best efforts to cause their (and in their respective subsidiaries') directors, officers, employees, agents, attorneys, accountants and representatives, to (i) obtain all consents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications or other permissions or actions by, and give all necessary notices to, and make all filings with and applications and submissions to, any event before Governmental Entity (including promptly filing with the Termination Date), United States Federal Trade Commission (the Acquisition "FTC") and the other Antitrust Division of the United States Department of Justice (the "Department of Justice") pursuant to the HSR Act all requisite documents and notifications in connection with the transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth or other person necessary in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 (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 consummation of the transactions contemplated by this AgreementAgreement as soon as reasonably practicable; (ii) provide all such information concerning such party, use its subsidiaries and its officers, directors, employees, partners and affiliates as may be necessary or reasonably requested in connection with any of the foregoing; (iii) avoid the entry of, or have vacated or terminated, any injunction, decree, order, or judgment that would restrain, prevent, or delay the consummation of the transactions contemplated hereby, including but not limited to defending through litigation on the merits any claim asserted in any court by any person; and (iv) take any and all reasonable best efforts steps necessary to ensure avoid or eliminate every impediment under any antitrust, competition, or trade regulation law that is asserted by any Governmental Entity with respect to the Acquisition transactions contemplated hereby so as to enable the consummation of such transactions to occur as expeditiously as possible.
(b) The Seller and the Buyer shall keep the 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 communications received by either of them or by any of their respective subsidiaries, from any third party and/or any Governmental Entity with respect to the 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyAgreement.
Appears in 1 contract
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 set forth herein5.2, each of the parties agrees to hereto will use reasonable best efforts to take, or cause to be taken, all actionsaction, 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 applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using . Such reasonable best efforts to: shall include, without limitation, (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 obtaining all necessary consents, approvals or waivers from third parties, including all Necessary Consents, parties and (iv) execute or deliver any additional instruments governmental authorities necessary to consummate the consummation of the transactions contemplated byby this Agreement and (ii) opposing vigorously any litigation or administrative proceeding relating to this Agreement or the transactions contemplated hereby, including, without limitation, promptly appealing any adverse court or agency order. Notwithstanding the foregoing or any other provisions contained in this Agreement to the contrary, neither Parent nor any of its affiliates shall be under any obligation of any kind to agree with any Governmental Entity, including but not limited to any governmental or regulatory authority with jurisdiction over the enforcement of any applicable federal, state, local and foreign antitrust, competition or other similar laws, or any other party to fully carry out the purposes sell or otherwise dispose of, this Agreement. In connection hold separate (through the establishment of a trust or otherwise) particular assets or categories of assets or businesses of any of the Company, Parent or any of Parent's affiliates.
(b) The Company shall give and make all required notices, filings and reports to the appropriate persons with respect to the Permits and without limiting Environmental Permits and comply with all applicable requirements under Environmental Laws that may be necessary for the foregoingsale and purchase of the business and the ownership, operation and use of the assets of Surviving Corporation by Parent after the Effective Time.
(c) The Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to the AcquisitionOffer, the Merger, this Agreement or any of the other transactions contemplated by the foregoing and (ii) if any state takeover statute or similar statute or regulation becomes applicable to the Offer, the Merger, this AgreementAgreement or any other transactions contemplated by the foregoing, use reasonable best efforts take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of Offer, the application of any such Legal Requirement, if available), this Agreement Merger and the other transactions contemplated herebyby this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Talley Industries Inc)
Reasonable Best Efforts. Subject (a) Prior to the express provisions of Section 5.4 and Section 5.7 hereofClosing, and upon the other terms and subject to the conditions set forth hereinof this Agreement, each of Parent, Purchaser and the parties agrees Company agree to use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable (subject to any applicable laws) to consummate and make effectiveeffective the Merger and the other Transactions as promptly as practicable including, but not limited to (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the other Transactions and the taking of such actions as expeditiously as possible are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any third party or Governmental Entity, (ii) the preparation of any disclosure documents reasonably requested by Parent in order to facilitate financing of any of the Transactions and (iii) the satisfaction of the other parties’ conditions to Closing. In addition, no party hereto shall take any action after the date hereof (and that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any event before permission, approval or consent from any Governmental Entity necessary to be obtained prior to Closing. Notwithstanding the Termination Date)foregoing, or any other covenant herein contained, in connection with the receipt of any necessary approvals under the HSR Act, neither the Company nor any of the Company Subsidiaries shall be entitled to divest or hold separate or otherwise take or commit to take any action that limits Parent’s or Purchaser’s freedom of action with respect of, or their ability to retain, the Acquisition Company or any of the Company Subsidiaries or any material portions thereof or any of the businesses, product lines, properties or assets of the Company or any of the Company Subsidiaries, without Parent’s prior written consent.
(b) Prior to the Closing, each party shall promptly consult with the other parties hereto with respect to, provide any necessary information with respect to, and provide the other parties (or their respective counsel) with copies of, all filings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement, the Merger and the other transactions contemplated by this AgreementTransactions. Each party hereto shall promptly inform the other of any communication from any Governmental Entity regarding any of the Transactions. If any party hereto or Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity with respect to any of the Transactions, including by using reasonable best efforts to: (i) then such party shall endeavor in good faith to make, or cause the conditions precedent set forth in Article VI to be satisfiedmade, (ii) obtain all necessary actions as soon as reasonably practicable and after consultation with the other parties, an appropriate response in compliance with such request. To the extent that transfers, amendments or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making modifications of all necessary registrations, declarations and filings permits (including registrations, declarations and filings with Governmental Entities, if anyenvironmental permits) and, subject to are required as a result of the limitations set forth hereinexecution of this Agreement or consummation of any of the Transactions, the taking Company shall use commercially reasonable efforts to effect the transfer, amendment or modification of all steps and remedies such permits as may be necessary to avoid any suit, claim, action, investigation or proceeding requested by any Governmental Entity, Parent.
(iiic) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (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 foregoingIf required, the Company and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable to Parent shall file as soon as practicable notifications under the Acquisition, this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition HSR Act and the other transactions contemplated by this Agreement may be consummated respond as promptly as practicable on to any inquiries received from the terms contemplated by Federal Trade Commission and the Antitrust Division of the Department of Justice for additional information or documentation and 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. Concurrently with the filing of notifications under the HSR Act or as soon thereafter as practicable, the Company and Parent shall each request early termination of the HSR Act waiting period.
(d) Notwithstanding the foregoing, nothing in this Agreement and otherwise shall be deemed to minimize require Parent or Purchaser to commence any litigation against any entity in order to facilitate the effect consummation of such Legal Requirement on the Acquisition (including by seeking a waiver any of the application Transactions or to defend against any litigation brought by any Governmental Entity seeking to prevent the consummation of any such Legal Requirement, if available), this Agreement and of the transactions contemplated herebyTransactions.
Appears in 1 contract
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth herein, each (a) Each of the parties Parties hereto agrees to use its reasonable best efforts efforts, and to cooperate with each other Party hereto, to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper appropriate or advisable desirable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders execute and authorizations from Governmental Entities deliver such other instruments and the making of all necessary registrations, declarations do and filings (including registrations, declarations perform such other acts and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all steps and remedies things 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 (iv) execute or deliver any additional instruments necessary to consummate reasonably desirable for effecting completely 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 consummation of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement Agreement.
(b) The Parties acknowledge that certain consents to the Contemplated Transactions may be consummated as promptly as practicable on required from parties to Contracts, Leases, licenses or other agreements to which the terms contemplated by this Agreement Parties and otherwise to minimize the effect of such Legal Requirement on the Acquisition their Subsidiaries are a party (including by seeking a waiver the Company Material Contracts and the FSI Material Contracts) and such consents may not have been obtained prior to the Closing. The Parties agree and acknowledges that neither the Group Companies, nor FSI or any of its Subsidiaries will have any liability whatsoever to the other Party (and no Party will be entitled to assert any claims) arising out of or relating to the failure to obtain any consents that may have been or may be required in connection with the Contemplated Transactions or because of the application default, acceleration or termination of any such Contract, Lease, license or other agreement as a result thereof. The Parties further agree that no representation, warranty or covenant of the Parties contained herein will be breached or deemed breached and no condition of the Parties will be deemed not to be satisfied as a result of the failure to obtain any such consent or as a result of any such default, acceleration or termination or any Legal RequirementProceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any consent or any such default, acceleration or termination.
(c) FSI shall use its commercially reasonable efforts to obtain, prior to the filing of the Registration Statement / Proxy Statement, for its Board of Directors a fairness opinion with respect to the Merger customary for a transaction similar to the Merger and in form and substance satisfactory to FSI, which fairness opinion, if available)obtained, this Agreement and will be included in the transactions contemplated herebyRegistration Statement / Proxy Statement. FSI will not file the Registration Statement / Proxy Statement until such Board of Directors receives such fairness opinion.
Appears in 1 contract
Sources: Merger Agreement (Flexible Solutions International 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 set forth hereinof this Agreement, each of the parties agrees to party shall use its reasonable best efforts in good faith to take, or cause to be taken, all actions, 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 to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suitan action or Proceeding by, claim, action, investigation or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third partiesparties (provided that if obtaining any such consent, including all Necessary Consentsapproval or waiver would require any action other than the payment of a nominal amount, and such action shall be subject to the consent of Company and/or Parent, as applicable, not to be unreasonably withheld), (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In Company shall give Parent the opportunity to participate in the defense of any shareholder litigation against Company and/or its directors relating to the transactions contemplated by this Agreement. Each party shall also refrain from taking, directly or indirectly, any action contrary or inconsistent with the provisions of this Agreement, including action that would impair such party's ability to consummate the Merger and the other transactions contemplated hereby.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or transfer, or cause any of its Subsidiaries to dispose of or transfer, any assets, or to commit to cause Company to dispose of any assets; (ii) to discontinue or to cause any of its Subsidiaries to discontinue offering any product or service, or to commit to cause Company to discontinue offering any product or service; (iii) to license or otherwise make available, or cause any of its Subsidiaries to license or otherwise make available, to any Person, any technology or other Intellectual Property, or to commit to cause Company to license or otherwise make available to any Person any technology or other Intellectual Property; (iv) to hold separate or cause any of its Subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause Company to hold separate any assets or operations; (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Entity or otherwise) regarding its future operations or the future operations of Company; or (vi) to defend any Proceeding, whether judicial or administrative, challenging the 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.
(c) Without limiting the generality of this Section 5.7, Parent and Company shall together, or pursuant to an allocation of responsibility to be agreed between them, coordinate and THE SYMBOL "[***]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. cooperate (i) in connection with and without limiting the foregoingpreparation of the Information Statement, the Company and its Board of Directors shall(ii) in determining whether any action by or in respect of, if or filing with, any takeover statute or similar Legal Requirement Governmental Entity is or becomes applicable to the Acquisitionrequired, this Agreement or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by iii) in seeking a waiver of the application of any such Legal Requirementactions, if available)consents, this Agreement approvals or waivers or making any such filings, furnishing information required in connection therewith or with the Information Statement and the transactions contemplated herebyseeking timely to obtain any such actions, consents, approvals or waivers.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Virage Logic Corp)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Mergers and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities Entities, including any required action or non-action under the HSR Act and any other Antitrust Laws set forth on Section 5.2(c)(A) of the Copper Disclosure Letter and Section 4.2(c)(A) of the Steel Disclosure Letter (the “Required Consents”) prior to the Closing Effective Time, and the making of all necessary registrations, declarations registrations 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 obtain a Required Consent from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers waivers, and any necessary or appropriate financing arrangements, from third parties, (iii) except insofar as Copper and Steel may otherwise agree, 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 all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this AgreementAgreement and (v) refraining from taking any action that would reasonably be expected to impede, interfere with, prevent or materially delay the consummation of the Mergers. In connection with furtherance and without limiting 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 Company HSR Act with respect to the transactions contemplated hereby as promptly as practicable and its Board in any event within ten (10) Business Days of Directors shallthe date of this Agreement, (ii) appropriate filings, if any takeover statute or similar Legal Requirement is or becomes applicable are required, pursuant to any other Antitrust Laws set forth on Section 5.2(c)(A) of the Copper Disclosure Letter and Section 4.2(c)(A) of the Steel Disclosure Letter as promptly as practicable and (iii) all other necessary filings with other Governmental Entities relating to the AcquisitionMerger, this Agreement and, in each case, to supply as promptly as practicable any additional information and documentary material that may be formally or any of informally requested pursuant to laws by such authorities, including Antitrust Laws, such as a “Second Request” under the transactions contemplated by this AgreementHSR Act, and to use reasonable best efforts to ensure that cause the Acquisition expiration or termination of any applicable waiting periods under the HSR Act and any other Antitrust Laws set forth on Section 5.2(c)(A) of the Copper Disclosure Letter and Section 4.2(c)(A) of the Steel Disclosure Letter and the other transactions contemplated by this Agreement may be consummated receipt of the Required Consents as soon as practicable. In furtherance and not in limitation of the foregoing, the parties shall use its reasonable best efforts to certify substantial compliance with any “Second Request” pursuant to the HSR Act as promptly as practicable practicable, but in no event later than 6 months from the date of signing.
(b) The parties shall jointly develop, and each of the parties shall consult and cooperate in all respects with one another, and consider in good faith the views of one another, in connection with the form and content 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 the HSR Act or any other Antitrust Laws set forth on Section 5.2(c)(A) of the Copper Disclosure Letter and Section 4.2(c)(A) of the Steel Disclosure Letter prior to their submission. Each of the parties 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 party to review in advance any proposed communication to any such Governmental Entity and incorporate the other party’s reasonable comments, (ii) not agree to participate in any material or substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Mergers unless, to the extent reasonably practicable, 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 therein, and (iii) promptly furnish the other party with copies of all material or substantive correspondence, filings and written communications between them and their Affiliates and their respective officers, directors, employees and Representatives, on one hand, and any such Governmental Entity or its respective staff on the terms contemplated by this Agreement and otherwise other hand, with respect to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyMergers 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 Section 8.3(b) may be redacted as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(c) Subject to the last sentence of this Section 8.3(c), the parties shall jointly develop, and each of the parties shall consult and cooperate with one another, and consider in good faith the views of one another, with respect to (i) the strategy, timing and form for obtaining any necessary approval of, for responding to any request from, inquiry or investigation by, or execution of any remedy required by, any Governmental Entity that has authority to enforce the HSR Act or any other Antitrust Laws set forth on Section 5.2(c)(A) of the Copper Disclosure Letter and Section 4.2(c)(A) of the Steel Disclosure Letter or any other Applicable Law related to any other Required Consent (including directing the timing, nature and substance of all such responses, including any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with the subject matter of this Section 8.3), and (ii) the defense and settlement of any Action brought by or before any Governmental Entity that has authority to enforce the HSR Act or any other Antitrust Laws set forth on Section 5.2(c)(A) of the Copper Disclosure Letter and Section 4.2(c)(A) of the Steel Disclosure Letter; provided, however, that in the event of any disagreement between the parties with respect to the matters described in the foregoing clause (i) or (ii), the General Counsel (or equivalent) of Copper and the General Counsel (or equivalent) of Steel shall seek to resolve such disagreement reasonably and in good faith; provided, that if the General Counsels (or such equivalents) of the parties cannot resolve any such disagreement, the Chief Financial Officer of Copper and the Chief Financial Officer of Steel shall seek to resolve such disagreement reasonably and in good faith; provided, further, that if the Chief Financial Officers of the parties cannot resolve any such disagreement, the Chief Executive Officer of Copper and the Chief Executive Officer of Steel shall resolve such disagreement reasonably and in good faith.
Appears in 1 contract
Sources: Merger Agreement (Cedar Fair L P)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement (including those contained in this Section 6.08), each of the parties agrees to hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after and to satisfy all conditions to, in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionspermits, waivers, consents, approvals, orders approvals and authorizations actions or nonactions from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntities, (iiiii) obtain the obtaining of all necessary consents, approvals consents or waivers from third parties, including all Necessary Consentsparties that are necessary to consummate the transactions contemplated by this Agreement, and (iviii) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, Offer and the Merger and to fully carry out the purposes ofof this Agreement, including any notices or requests required under the U.S. International Trade and Anti-Corruption Laws. Parent will take all action necessary to cause Merger Sub to perform its obligations under this Agreement and to Table of Contents consummate the Offer and the Merger on the terms and conditions set forth in this Agreement. In connection with and without limiting the foregoing, the The Company and its Board of Directors Parent shall, if subject to applicable Law, promptly (x) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii) and (iii) immediately above and (y) supply the other with any takeover statute information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or similar Legal Requirement is or becomes applicable to parties hereto, as the Acquisitioncase may be, this Agreement or of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company or Parent receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to ensure that make, or cause to be made, as soon as reasonably practicable and after consultation with the Acquisition other party, an appropriate response in compliance with such request, and, if permitted by applicable Law and by any applicable Governmental Entity, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting with any Governmental Entity in respect of any filing made thereto in connection with the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 6.08(a) hereof, the parties hereto shall (i) provide or cause to be provided as promptly as reasonably practicable to Governmental Entities with jurisdiction over the Antitrust Laws (each such Governmental Entity, a “Governmental Antitrust Authority”) information and documents requested by any Governmental Antitrust Authority as necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, including preparing and filing any notification and report form and related material required under the HSR Act and any additional consents and filings under any other Antitrust Laws as promptly as practicable following the date of this Agreement (provided that in the case of the filing under the HSR Act, such filing shall be made no later than ten (10) Business Days of the date of this Agreement) and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act or any other applicable Antitrust Laws and (ii) subject to the terms set forth in Section 6.08(c) hereof, use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt approval of the consummation of the transactions contemplated by this Agreement may by any Governmental Entity or expiration of applicable waiting periods.
(c) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be consummated as promptly as practicable on instituted) by a Governmental Entity or private party challenging the terms Offer, the Merger or any other transaction contemplated by this Agreement Agreement, or any other agreement contemplated hereby, the Company, Parent and otherwise Merger Sub shall cooperate in all respects and shall use their respective reasonable best efforts to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of contest and resist any such Legal Requirementaction or proceeding and to have vacated, if available)lifted, this Agreement reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated herebyby this Agreement.
(d) The Company shall use its reasonable best efforts to assist Parent in obtaining title commitments, title policies and surveys in connection with the Owned Real Estate, including, without limitation, using its reasonable best efforts to remove from title any liens or encumbrances which are not Permitted Liens. The Company shall provide the title company with any affidavit, indemnity or other assurances reasonably requested by the title company to issue such title policies.
(e) Nothing in this Agreement shall require Parent, Merger Sub or the Company or any of their respective Affiliates to (i) dispose of any of its respective material Contracts, businesses, product lines, products or assets, including any investments in any other business, (ii) limit its freedom of action with respect to any of its businesses, (iii) consent to any disposition of its assets or limits on its freedom of action with respect to any of its businesses, (iv) constitute or implement any proxy board, or (v) commit or agree to any of the foregoing and, except with the prior written consent of Parent, the Company and its Subsidiaries shall not commit or agree to any of the foregoing.
Appears in 1 contract
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 set forth hereinin this Agreement, each of the parties agrees to hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable law) to taketake promptly, or cause to be taken, all actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain obtaining all necessary consents, approvals or waivers from third parties, including all Necessary Consents(iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (iv) publicly supporting this Agreement and the Merger and (iv) execute or deliver executing and delivering any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. .
(b) 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, Parent shall (i) use their reasonable best efforts to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Acquisition Merger or any of the other transactions contemplated hereby, and (ii) 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 the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement hereby and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement Merger and the other transactions contemplated hereby.
(c) In connection with and without limiting the foregoing, the Company shall use its reasonable best efforts to assist Parent's reasonable efforts to effect, subsequent to the Effective Time, the combination (the "Bank Combination") of the Bank with Parent Bank, National Association, or another banking subsidiary of Parent, including causing such banks to enter into a merger agreement, obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities (including the OCC Approval) 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 (including the OCC Approval), with such Bank Combination to be effective immediately following the Effective Time or at such later time as Parent may determine.
Appears in 1 contract
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 set forth hereinin this Agreement, each of the parties agrees to hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or cause to be taken, all actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), effective the Acquisition Transactions and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, consents and approvals, orders including the Company Approvals and authorizations the Parent Approvals, from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suitan Action by, claim, action, investigation or proceeding by any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents(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) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In connection with and without ; provided, however, that in no event shall the Company or any of its Subsidiaries prior to the Effective Time pay or agree to pay any material fee or penalty or other material consideration or grant any material concessions 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; provided further that neither the Company nor any of its Subsidiaries shall be required to materially modify any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, license, contract or other agreement, except (A) as expressly contemplated by this Agreement, or (B) where such modification is conditioned upon the consummation of the Merger.
(b) Without limiting the foregoing, and except with respect to the LFA Approvals (which are covered by Section 5.6(c) below), the Company, Cable Buyer, Metro Parent and Merger Sub 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) as promptly as practicable, make the necessary applications, requests, notices and other filings, and thereafter timely make all other filings and notifications, required to obtain or maintain all FCC Approvals and State PUC Approvals, (iii) use their respective 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 by this Agreement and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iv) use their respective reasonable best efforts to obtain the FCC Approvals and State PUC Approvals as expeditiously as possible, (v) use their respective reasonable best efforts to take, or cause to be taken, all other actions that would not reasonably be expected to constitute, individually or in aggregate, a Company Material Adverse Effect, and do, or cause to be done, all other things that would not reasonably be expected to constitute, individually or in aggregate, a Company Material Adverse Effect, necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, including taking all such further actions that would not reasonably be expected to constitute, individually or in aggregate, a Company Material Adverse Effect, 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 (each of the foregoing, an “Antitrust Authority”) may assert under any Regulatory Law with respect to the transactions contemplated by this Agreement, and, consistent with the foregoing, to avoid or eliminate each and every impediment under any Law that would reasonably be expected to be asserted by any Governmental Entity with respect to the Acquisition Transactions so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, trust or otherwise, the sale, divestiture or disposition of such assets or businesses of Cable Buyer, Metro Parent or any of their respective Subsidiaries or affiliates or of the Company or its Subsidiaries to the extent such actions would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (B) otherwise taking or committing to take actions that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect that after the Closing Date would limit the freedom of either Parent’s or its Board Subsidiaries’ (including the Surviving Corporation’s) or affiliates’ freedom of Directors action with respect to, or its ability to retain, one or more of their 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, and (vi) subject to applicable legal limitations and 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, Cable Buyer, Metro Parent or Merger Sub, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Antitrust Authority, the FCC and/or State PUC with respect to such transactions.
(c) As soon as practicable after the date hereof, but in no event later than twenty (20) business days after the date hereof, the Company, Cable Buyer, Metro Parent and Merger Sub shall prepare and submit to the Local Franchising Authorities FCC Form 394 transfer applications, or such other applications, notices and/or requests, as the parties reasonably agree are appropriate in order to obtain the LFA Approvals, and the Company, Cable Buyer, Metro Parent and Merger Sub shall cooperate with each other to provide any information required by such applications.
(i) Each of the Company, Cable Buyer, Metro Parent and Merger Sub shall use their respective reasonable best efforts to obtain the LFA Approvals as expeditiously as possible.
(ii) The Company, Cable Buyer, Metro Parent and Merger Sub shall cooperate fully with each other in obtaining the LFA Approvals, including by helping each other to arrange and facilitate negotiations with the applicable Local Franchising Authorities.
(iii) None of the Company, Cable Buyer, Metro Parent or Merger Sub shall, without the prior written consent of the other parties hereto, (A) propose or agree to any amendments, conditions or modifications to the Franchises, (B) agree to any extension(s) of the 120-day period under the Communications Act for a Local Franchising Authority to act upon an LFA Approval application or (C) make any proposals or take other actions that would reasonably be expected to (x) adversely affect the likelihood that the LFA Approval will be granted or (y) delay the grant of any such LFA Approval beyond the 120-day period following submission of the FCC Form 394 transfer application.
(iv) At the outset of any communications and/or discussions with any Local Franchising Authority and as reasonably appropriate throughout such communications and discussions, (A) each of Cable Buyer, Metro Parent and Merger Sub shall reiterate to such Local Franchising Authority the willingness and ability of Cable Buyer, Metro Parent and Merger Sub to accept and assume all of the obligations of such Franchise, without material amendment, modification or imposition of any additional material obligations or commitments and (B) each of the Company, Cable Buyer, Metro Parent and Merger Sub shall reiterate that it desires to secure the LFA Approval as expeditiously as possible, and in no event later than the end of the 120-day period following submission of the Form 394 transfer application and other required information to the applicable Local Franchising Authority. If, at any time, a Local Franchising Authority indicates that it will approve the transfer of a Franchise in such form as it exists as of the date hereof without amendment, modification or imposition of any additional obligations or commitments, then the Company, Cable Buyer, Metro Parent and Merger Sub shall agree to accept the transfer approval on such terms.
(d) The Company, Cable Buyer, Metro Parent and Merger Sub shall permit counsel for the other parties hereto reasonable opportunity to review in advance, and consider in good faith the views of the other parties in connection with, any proposed written communication to any Governmental Entity. Each of the Company, Cable Buyer, Metro Parent and Merger Sub agrees, to the extent reasonably possible, not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other parties hereto in advance and, to the extent not prohibited by such Governmental Entity, gives the other parties reasonable advance notice of such meeting or discussion and the opportunity to attend and participate therein. Upon receipt of prior notice thereof, each of the Company, Cable Buyer, Metro Parent and Merger Sub shall ensure that its appropriate officers and employees shall be available to attend, as the Company, Cable Buyer, Metro Parent, Merger Sub or the applicable Governmental Entity may reasonably request, any scheduled hearings or meetings in connection with obtaining any FCC Approvals, State PUC Approvals or LFA Approvals. Notwithstanding anything to the contrary in this Section 5.6, materials provided to the other party or its outside counsel may be redacted to remove any estimate of the valuation of the Company, its business or its capital stock, or the identities of other potential acquirers. The 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 5.6 so as to preserve any applicable privilege. As soon as reasonably practicable following the date hereof, the Company, Cable Buyer, Metro Parent and Merger Sub shall negotiate in good faith the terms of, and enter into, a joint defense agreement regarding certain matters of common interest arising from the transactions contemplated by this Agreement.
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any takeover statute administrative or similar Legal Requirement judicial action or proceeding, including any proceeding by a private party, is instituted (or becomes applicable threatened to the Acquisition, be instituted) challenging any transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company, Cable Buyer and Metro 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, use reasonable best efforts nothing in this Section 5.6 shall limit a party’s right to ensure that terminate this Agreement pursuant to Section 7.1(b) or Section 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(f) Except as expressly contemplated by this Agreement, neither Parent nor the Acquisition Company shall, and each shall cause its respective affiliates not to, take any action (including any acquisition of businesses or assets) which would reasonably be expected to prevent or delay the other consummation of the transactions contemplated by this Agreement may due to the actions of any Antitrust Authority, State PUC or the FCC. Cable Buyer, Metro Parent and the Company acknowledge and agree that in the event that any affiliate of Cable Buyer, Metro Parent or the Company takes any such action that it shall be consummated as promptly as practicable on the terms contemplated by deemed to be a breach of this Agreement by Cable Buyer, Metro Parent or the Company, as appropriate.
(g) For purposes of this Agreement, “Regulatory Law” means the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914, the Communications Act, and otherwise all other federal, state, local or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including without limitation (i) any antitrust, competition or trade regulation Laws that are designed or intended to minimize (A) prohibit, restrict or regulate actions having the purpose or effect of such Legal Requirement on monopolization or restraint of trade or lessening competition through merger or acquisition or (B) protect the Acquisition (including by seeking a waiver of national security or the application national economy of any such Legal Requirementnation, if available), this Agreement and (ii) any Laws designed or intended to regulate the transactions contemplated herebytelecommunications and/or cable industries.
Appears in 1 contract
Sources: Merger Agreement (RCN Corp /De/)
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement and except where a different standard is expressly applicable, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition and the other transactions contemplated by this AgreementTransactions, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, ; (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvalsapprovals or waivers from, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations declarations, and filings with, third parties and Governmental Authorities required to consummate the Transactions (including registrations, declarations and filings with Governmental Entities, if any) and, subject to obtaining clearances from 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, Financial Industry Regulatory Authority); (iii) obtain all necessary consentsthe defending against any lawsuits, approvals actions or waivers from third partiesproceedings, including all Necessary Consentsjudicial or administrative, challenging this Agreement or the consummation of the Transactions, and seeking to have any preliminary injunction, temporary restraining order, stay or other legal restraint or prohibition entered or imposed by any court or other Governmental Authority that is not yet final and nonappealable vacated or reversed; (iv) execute allowing the Company to qualify as a REIT commencing with its short taxable year ending December 31, 2010; and (v) the execution or deliver delivery of any additional instruments reasonably necessary to consummate the transactions contemplated byTransactions, and to fully carry out the purposes of, of this Agreement. In , including, without limitation, providing certificates as to factual matters in connection with and without limiting legal opinions. Notwithstanding the foregoing, nothing set forth in this Section 5.7 nor the Company and its Board use of Directors shallthe phrase “commercially reasonable efforts” or “reasonable best efforts” hereunder shall be deemed to require either party hereto to (x) make any payments or concessions for the purposes of obtaining any consent, if any takeover statute approval or similar Legal Requirement is waiver of a third party (excluding Governmental Authorities) for the purpose of consummating or becomes applicable to making effective the Acquisition, this Agreement Transactions or (y) waive any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of its rights under any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyTransaction Document.
Appears in 1 contract
Sources: Framework Agreement (Global Brands Acquisition Corp.)
Reasonable Best Efforts. Subject to the express provisions terms and conditions of Section 5.4 and Section 5.7 hereofthis Agreement, Parent, on the one hand, and upon the other terms and subject to the conditions set forth herein, each of the parties agrees Partnership and the General Partner, 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 appropriate actions, and to do, or cause to be done, all things, necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable (and in any event no later than the Outside Date), including, for the avoidance of doubt, in the case of Parent and the General Partner until the Effective Time or the termination of this Agreement, retaining ownership and voting control over all Common Units beneficially owned by Parent and the General Partner as of the date of this Agreement or acquired thereafter and to assist consummate and cooperate with make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other parties hereto documents, (ii) obtain promptly (and in doingany event no later than the Outside Date) all approvals, all things 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 and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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) 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 and (iv) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (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 Parent and its Board Affiliates shall enter into the Support Agreement by execution of Directors shall, a joinder thereto if at any takeover statute or similar Legal Requirement is or becomes applicable time prior to the Acquisition, taking of the vote of the Common Units in respect of this Agreement the Parent or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application its Affiliates acquire beneficial or direct ownership of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyCommon Units.
Appears in 1 contract
Sources: Merger Agreement (Ugi Corp /Pa/)
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinof this Agreement, each of the parties agrees to party will use its reasonable best efforts in good faith to take, or cause to be taken, all actions, 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 applicable Legal Provisions to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to the Closing to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suitan action or Proceeding by, claim, action, investigation or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third partiesparties (provided that if obtaining any such consent, including all Necessary Consentsapproval or waiver would require any action other than the payment of a nominal amount, such action shall be subject to the consent of Cygne and Commerce, not to be unreasonably withheld), (iv) execute the defending of any Proceedings, whether judicial or deliver administrative, 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 and (v) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection Each party shall also refrain from taking, directly or indirectly, any action contrary or inconsistent with and without limiting the foregoing, the Company and its Board provisions 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 including action that would impair such party’s ability to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Agreement, Cygne shall have no obligation under this Agreement: (i) to commit to dispose of any Assets; (ii) to hold separate any Assets or operations; or (iii) to make any commitment (to any Governmental Entity or otherwise) regarding its future operations or the future operations of the Acquired Business.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Each of the express provisions of Section 5.4 Company and Section 5.7 hereofPurchaser Group shall, and upon the other terms and subject to the conditions set forth hereinshall cause its Subsidiaries to, each of the parties agrees to use all reasonable best efforts (i) to take, or cause to be taken, all actionsactions necessary to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger and to consummate the transactions contemplated by this Agreement as promptly as practicable, and (ii) to do, or cause to be done, obtain (and to assist and cooperate with the other parties hereto party to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and/or any other public or private third party which is required to be obtained or made by such party or any of its Subsidiaries in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after connection with the date hereof (and in any event before the Termination Date), the Acquisition Merger and the other transactions contemplated by this Agreement; provided, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI however, that a party shall not be obligated to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject take any action pursuant to the limitations set forth herein, foregoing if the taking of all steps and remedies as may be necessary such action or such compliance or the obtaining of such consent, authorization, order, approval or exemption will result in a condition or restriction on such party or on the Surviving Corporation having an effect of the type referred 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreementin Section 6.1(d). In connection with and without limiting the foregoing, Each of the Company and its Board Purchaser Group will promptly cooperate with and furnish information to the other in connection with any such efforts by, or requirement imposed upon, any of them or any of their Subsidiaries in connection with the foregoing.
(b) Each of the Company and Purchaser Group and their respective Boards of Directors shall, if any state takeover statute or similar Legal Requirement is or statute becomes applicable to the Acquisition, this Agreement or any of the transactions contemplated by this Agreement, the Merger, or any other transactions contemplated hereby or thereby, use all reasonable best efforts to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement hereby or thereby and otherwise to minimize the effect of such Legal Requirement statute or regulation on this Agreement, the Acquisition Merger, and the other transactions contemplated hereby or thereby.
(including by seeking a waiver c) Neither the Company nor the Purchaser Group shall, or shall permit any of its or their Subsidiaries to, intentionally take any action that would, or would reasonably be expected to, result in any of the application conditions to the Merger set forth in Article VI not being satisfied, or (unless such action is required by applicable law) that would adversely affect the ability of the parties to obtain any such Legal Requirement, if availableof the Requisite Regulatory Approvals without imposition of a condition or restriction of the type referred to in Section 6.1(d), this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Walden Vc Ii L P)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject ----------------------- to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act, any other pre-merger filings and State Takeover Approvals), (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure businesses or assets of Parent or any of its Subsidiaries or that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable otherwise would have a Material Adverse Effect on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyParent.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things actions that are reasonably necessary, proper or advisable to consummate and make effectiveeffective the Merger, as expeditiously as possible after the date hereof Share Issuance, the Charter Amendment and the other transactions contemplated by this Agreement (and other than waiving any conditions to Closing set forth in any event before the Termination DateArticle VI), including using reasonable best efforts to accomplish the Acquisition following: (i) obtain all required consents, approvals or waivers from non-Governmental Entity third parties necessary, proper or advisable to consummate and make effective the Merger, the Share Issuance and the Charter Amendment and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactionsnon-actions, waivers, consents, clearances, approvals, orders and authorizations from Governmental Entities and the making of Entities, make all necessary registrations, declarations and filings (including registrationswith, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of take all steps and remedies as may be necessary to avoid any suitAction by, claim, action, investigation or proceeding 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 under any applicable foreign Antitrust Laws with any applicable foreign Governmental Entity and (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, execute and (iv) execute or deliver any additional instruments necessary instruments, in each case as necessary, proper or advisable to consummate the transactions contemplated by, hereby and fully to fully carry out the purposes of, of this Agreement. In Each of the parties hereto shall furnish to each other party such necessary information and reasonable assistance as the other party may reasonably request in connection with the foregoing and without limiting will cooperate in responding to any inquiry from a Governmental Entity, including promptly (and in no event later than two (2) Business Days) informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of all material correspondence, filings or communications with any Governmental Entity with respect to this Agreement.
(b) ▇▇▇▇▇▇ and Rook shall (i) file with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice any notifications required to be filed pursuant to and in compliance with the HSR Act as promptly as practicable after the date of this Agreement (but in no event later than ten (10) Business Days after the date of this Agreement); (ii) if required, file with the Mexican Federal Economic Competition Commission (Comisión Federal de Competencia Económica) any notification required to be filed pursuant to and in compliance with the Federal Economic Competition Law of Mexico (Ley Federal de Competencia Económica) (“Mexican Competition Law”), as promptly as practicable after the date of this Agreement; and (iii) use reasonable best efforts to obtain early termination of any waiting period under the HSR Act and clearance under Mexican Competition Law, if required.
(c) In furtherance of the foregoing, each of ▇▇▇▇▇▇ and ▇▇▇▇ shall (and shall cause their respective Representatives to) promptly (i) supply the Company and its Board other with any information or reasonable assistance required or reasonably requested in order to effectuate any of Directors shallthe obligations set forth in this Section 5.6, if (ii) supply any takeover statute additional information or similar Legal Requirement is materials which are required or becomes applicable reasonably requested by any Governmental Entity of competent jurisdiction in connection with the transactions contemplated hereby, except to the Acquisitionextent both ▇▇▇▇▇▇ and Rook otherwise agree, (iii) subject to any restrictions under applicable Law, jointly participate in any communication, meeting or other contact with any Governmental Entity in connection with this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts hereby and (iv) subject to ensure that the Acquisition applicable legal limitations and the instructions of any Governmental Entity, keep each other 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 communications received by this Agreement ▇▇▇▇▇▇ or the company, as the case may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement and compliance with applicable Law and the other terms of this Agreement, each of the parties W. P. Carey, Merger Sub and CPA17 agrees to use its reasonable best efforts to take, or cause to be taken, all actions, 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 to fulfill all conditions applicable to such party or its Subsidiaries pursuant to this Agreement and to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreementthe Transaction Documents, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all reasonable steps and remedies as may be necessary to avoid any suitobtain an approval, claim, action, investigation waiver or proceeding by exemption from any Governmental Entity, (iiiii) obtain the obtaining of all necessary consents, approvals approvals, waivers or waivers exemptions from non-governmental third parties, including all Necessary Consents, and (iviii) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with addition, each of W. P. Carey, Merger Sub and without limiting CPA17 agrees to use its reasonable best efforts to defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging the foregoing, the Company and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable to the AcquisitionMerger, this Agreement or any of the transactions contemplated by the Transaction Documents, including seeking to have any stay, temporary restraining order, injunction, or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated by the Transaction Documents entered by any court or other Governmental Entity vacated or reversed. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purpose of this Agreement, use reasonable best efforts the proper officers and directors of CPA17, W. P. Carey and Merger Sub shall take all such necessary action. From the date of this Agreement through the Effective Time, CPA17 shall timely file, or cause to ensure be filed, with the SEC all CPA17 SEC Documents required to be so filed.
(b) Each of CPA17, W. P. Carey and Merger Sub shall give prompt notice to each other party if (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becomes untrue or inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or inaccurate in any material respect or (ii) it fails to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application delivery of any notice pursuant to Section 4.2(a) shall not limit or otherwise affect the remedies available hereunder to the party receiving such Legal Requirementnotice; and provided, if availablefurther, that failure to give such notice shall not be treated as a breach of covenant for the purposes of Sections 5.2(b) or 5.3(b), this Agreement and as the transactions contemplated herebycase may be.
Appears in 1 contract
Sources: Merger Agreement (W. P. Carey Inc.)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon- actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including any pre-merger filings and State Takeover Approvals), (iiiii) obtain 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, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by 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 No party to the Acquisition, this Agreement or shall consent to any voluntary delay of the transactions contemplated by consummation of the Offer or the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use reasonable best efforts to ensure that the Acquisition and the other transactions contemplated by not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement may to be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking untrue or result in a waiver of the application breach of any such Legal Requirement, if available), covenant made by it in this Agreement and the transactions contemplated herebyAgreement.
Appears in 1 contract
Sources: Merger Agreement (Kenetech Corp)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement (including those contained in this Section 5.08), each of the parties agrees to hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including (i) the obtaining of all necessary material permits, waivers, consents, approvals and actions or nonactions from Governmental Entities and Educational Agencies, and the making of all necessary material registrations and filings (including filings with Governmental Entities and Educational Agencies) and the taking of all steps as expeditiously as possible after may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities or Educational Agency, (ii) the date hereof obtaining of all necessary material consents or waivers from Third Parties and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. Parent will take all action necessary to cause Merger Sub to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. The Company and Parent shall, subject to applicable Law, promptly (x) reasonably cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii) and (iii) immediately above and (y) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions; provided, however, that Parent shall not be required to make any payments to Third Parties to secure any of the foregoing Consents contemplated by clause (ii) above and shall not be required to modify any such Contract to which the consent or waiver may relate in any event before material respect, and the Termination Date)Company shall not take any of the foregoing actions without Parent’s prior written consent; provided, further, that, for the Acquisition avoidance of doubt, none of the parties hereto shall be obligated or required to waive a condition to Closing set forth in Article VI. If the Company or Parent receives a request for additional information or Table of Contents documentary material from any Governmental Entity or Educational Agency with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts 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, and, if permitted by applicable Law and by any applicable Governmental Entity or Educational Agency, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting with any Governmental Entity or Educational Agency in respect of any filing made thereto in connection with the transactions contemplated by this Agreement; provided, however, that Parent and the Company shall have the right to review in advance, and the other party shall consider in good faith the views and comments of 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 Affiliates, that appears in any filing made with, or written materials submitted to, any Third Party and/or any Governmental Entity or Educational Agency in connection with the Merger and the other transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, including by using reasonable best efforts to: toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 5.08(a) hereof, the parties hereto shall (i) provide or cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from provided as promptly as reasonably practicable to Governmental Entities with jurisdiction over the Antitrust Laws (each such Governmental Entity, a “Governmental Antitrust Authority”) information and the making of all necessary registrations, declarations 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 documents requested by any Governmental EntityAntitrust Authority as necessary, (iii) obtain all necessary consents, approvals proper or waivers from third parties, including all Necessary Consents, and (iv) execute or deliver any additional instruments necessary advisable 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 permit consummation of the transactions contemplated by this Agreement, including preparing and filing any notification and report form and related material required under the HSR Act and any additional consents and filings under any Other Antitrust Laws as promptly as practicable following the date of this Agreement (provided, however, that in the case of the filing under the HSR Act, such filing shall be made within ten (10) Business Days of the date of this Agreement) and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act or any other applicable Antitrust Laws and (ii) subject to the terms set forth in Section 5.08(c) hereof, use their reasonable best efforts to ensure that take such actions as are necessary or advisable to obtain prompt approval of the Acquisition and consummation of the other transactions contemplated by this Agreement by any Governmental Entity or expiration of applicable waiting periods.
(c) In the event that any Legal Action by a Governmental Entity, Educational Agency, or Third Party challenging the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of the Company, Parent and Merger Sub shall use its reasonable best efforts to contest, defend and resist 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 transactions contemplated by this Agreement.
(d) Notwithstanding anything to the contrary contained in this Agreement, each of Parent and Merger Sub shall use their respective reasonable best efforts to obtain any necessary approval from any Governmental Antitrust Authority or to prevent the initiation of any Table of Contents lawsuit by any Governmental Entity under any Antitrust Law or to prevent the entry of any Order that would otherwise make the Merger unlawful, which reasonable best efforts shall include: (i) disposing or transferring any asset, including those of Parent, Merger Sub or (after the Effective Time) the Surviving Company; (ii) licensing or otherwise making available to any Person, any technology or other Intellectual Property of Parent, Merger Sub or (after the Effective Time) the Surviving Company; (iii) holding separate any assets or operations (either before or after the Closing Date) of Parent, Merger Sub or (after the Effective Time) the Surviving Company; or (iv) changing or modifying any course of conduct or otherwise making any commitment (to any Governmental Entity or otherwise) regarding future operations of the business of Parent, Merger Sub or (after the Effective Time) the Surviving Company (any of the actions set forth in clause (i) through (iv) of this Section 5.08(d), a “Remedial Action”); provided, however, that Parent and Merger Sub may condition the taking of any such Remedial Action upon the consummation of the Merger and, if so conditioned, will not be consummated as promptly as practicable on required to take any such Remedial Actions unless and until the terms Effective Time occurs. If any action or proceeding is instituted (or threatened to be instituted) challenging the transactions contemplated by this Agreement and otherwise to minimize or the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application Merger as violative of any such Legal RequirementAntitrust Law, or if available)any Order is entered, enforced or attempted to be entered or enforced by a court or other Governmental Entity, which Order would make the transactions contemplated by this Agreement and or the Merger illegal or would otherwise prohibit, prevent, restrict, impair or delay consummation of the transactions contemplated hereby, each of the Company, Parent and Merger Sub 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 such Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement or the Merger and to have such Order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement or the Merger.
Appears in 1 contract
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, CBS and ▇▇▇▇▇▇▇ each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things reasonably necessary, proper or advisable to consummate and make effective, as expeditiously as possible after the date hereof (and in any event before the Termination Date)a timely manner, the Acquisition Mergers and the other transactions contemplated by this Agreementthe Transaction Agreements, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waiverswaivers (including the Waiver), consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 reasonably necessary to obtain an approval, waiver (including the Waiver), order or authorization from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, including the actions or divestitures by CBS or its Affiliates contemplated by Section 4.2(c), if required as a condition to the approval of the FCC or the satisfactory conclusion of DOJ and/or FTC review under the Improvements Act, (iiiii) obtain the obtaining of all necessary waivers, consents, approvals approvals, orders or waivers authorizations from third parties, (iii) the defending of any suit, action or proceeding, whether judicial or administrative, challenging any Transaction Agreement or the consummation of any of the transactions contemplated by any Transaction Agreement, including all Necessary Consents, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreementthe Transaction Agreements. In connection ▇▇▇▇▇▇▇ shall obtain the consent to assignment of the microwave lease between the Limited Partnership and Dallas Main Center Limited Partnership and the lease with and without limiting the foregoingCrescent Real Estate, the Company and its Board of Directors shalleach as listed in Schedule 2.8 or, if any takeover statute or similar Legal Requirement is or becomes applicable such consents cannot be obtained, enter into replacement leases on terms not materially more disadvantageous to CBS, GTC, GCI and the Acquisition, this Agreement or any of Limited Partnership than those contained in the transactions contemplated by this Agreement, current microwave lease and Crescent Real Estate lease. CBS shall use its reasonable best efforts to ensure that cause the Acquisition shares of CBS Common Stock issued and delivered to ▇▇▇▇▇▇▇ hereunder to be registered pursuant to an effective registration statement under Section 5 of the other transactions contemplated by this Agreement may Securities Act to be consummated as promptly as practicable registered or otherwise duly qualified under all appropriate state securities or "blue sky" laws or regulations, and to be approved for listing on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyNYSE.
Appears in 1 contract
Sources: Merger Agreement (CBS Corp)
Reasonable Best Efforts. Subject to the express provisions (a) Each of Section 5.4 WinFirst and Section 5.7 hereofSummit shall, and upon the other terms and subject to the conditions set forth hereinshall cause its respective Subsidiaries to, each of the parties agrees to use all reasonable best efforts to take, or cause to be taken, all actionsactions necessary or advisable to consummate the Merger and make effective the other transactions contemplated hereby as promptly as reasonably practicable after the date hereof. Without limiting the generality of the foregoing, each Party shall, and shall cause its Subsidiaries to, use all reasonable best efforts (i) to dotake, or cause to be donetaken, all actions necessary to comply promptly with all Applicable Legal Requirements that may be imposed on such Party or its Subsidiaries with respect to the Merger and to consummate the Merger, and (ii) to assist obtain (and to cooperate with the other parties hereto in doingParty to obtain) any consent, all things necessaryauthorization, proper order or advisable to consummate and make effectiveapproval of, as expeditiously as possible after the date hereof (and in or any event before the Termination Date)exemption by, the Acquisition and the any Governmental Entity and/or any other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI public or private third party that is required to be satisfied, (ii) obtain all necessary actions obtained or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 made by any Governmental Entity, (iii) obtain all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (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 such Party or any of its Subsidiaries pursuant to Applicable Legal Requirements or any contract or other obligation in connection with the Merger and the transactions contemplated by this Agreement; provided, however, that a Party shall not be obligated to take any action pursuant to the foregoing if the taking of such action or such compliance or the obtaining of such consent, authorization, order, approval or exemption shall result in a condition or restriction on such Party or on Summit or its Subsidiaries having an effect of the type referred to in Section 7.1(d). In furtherance and not in limitation of the Parties’ obligations under this Section 6.4, each of the Parties further agrees as follows:
(i) Within fifteen (15) days of the execution of this Agreement, each of WinFirst and Summit shall, and shall cause its Subsidiaries to, use all reasonable best efforts to ensure prepare all necessary documentation and effect all necessary filings, applications, registrations, and notices in order to obtain the Requisite Regulatory Approvals.
(ii) WinFirst shall cooperate with Summit and shall furnish to Summit and Summit’s counsel all information concerning themselves, their Subsidiaries, directors, officers and shareholders and such other matters as may be necessary or advisable in connection with any application, filing, notice, registrations, or any other statement or application made by or on behalf of any Party or its Subsidiaries to any Governmental Entity in connection with the Merger. WinFirst shall have the right to review reasonably in advance all filings made in connection with the transactions contemplated by this Agreement with any Governmental Entity (other than with regard to information reasonably considered confidential by the providing Person). In addition, Summit shall furnish to WinFirst a final copy of each such filing made in connection with the transactions contemplated by this Agreement with any Governmental Entity (other than any part of such filings reasonably considered confidential by Summit).
(b) Each of WinFirst and Summit and their respective boards of directors shall, if any state Takeover Statute or similar statute becomes applicable to this Agreement, the Merger or any other transactions contemplated hereby, use all reasonable best efforts to provide that the Acquisition Merger and the other transactions contemplated by this Agreement may be consummated as promptly as reasonably practicable on the terms contemplated by this Agreement hereby and otherwise to minimize the effect of such Legal Requirement statute or regulation on this Agreement, the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement Merger and the other transactions contemplated hereby.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts including, but not limited to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act and State Takeover Approvals), (iiiii) obtain 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 or thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated byby this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the Company shall not be obligated to use its reasonable best efforts or to take any action pursuant to this Section 5.9 if the Board of Directors of the Company shall determine, in its good faith judgment, having received the advice of independent outside legal counsel to the Company, that such action would constitute a breach of such Board's fiduciary duties under applicable law, and (ii) in connection with any filing or submission required or action to fully carry out be taken by Parent, the purposes of, Company or any of its respective Subsidiaries to consummate the Merger or the other transactions contemplated in this Agreement. In connection with , the Company shall not, without Parent's prior consent, and Parent shall not, without limiting the foregoingCompany's prior consent, commit to any divestiture of assets or businesses of the Company and its Board of Directors shall, Subsidiaries if any takeover statute or similar Legal Requirement is or becomes applicable such divested assets and/or businesses are material to the Acquisitionassets or profitability of the Company or the Parent and their Subsidiaries taken as a whole, this Agreement and neither Parent nor the Company nor any of their Subsidiaries shall be required to divest any assets or business of Parent or its Subsidiaries or the Company or its Subsidiaries if such divested assets and/or businesses are material to the assets or profitability of Parent or its Subsidiaries taken as a whole or the Company and its Subsidiaries taken as a whole, respectively, or hold separate or otherwise take or commit to take any action that materially limits its freedom of action with respect to the Company or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyassets or businesses.
Appears in 1 contract
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 set forth herein----------------------- provided in this Agreement, each of the parties agrees to use its reasonable best efforts to taketake promptly, or cause to be taken, all actions, actions and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using its reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfiedobtain all necessary waivers, - consents and approvals and (ii) obtain to effect all necessary actions registrations and -- filings. In case at any time after the Effective Time any further action is necessary or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject desirable 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 (iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, obligations of the parties under this Agreement. , the proper officers and/or directors of Parent, MergerCo and the Company, as the case may be, shall take the necessary action.
(b) In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no - state takeover statute or similar Legal Requirement statute or regulation, in each case as the same is in effect on the date hereof, is or becomes applicable to the Acquisition, this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts Agreement and (ii) if any such state takeover -- statute or similar statute or regulation becomes applicable to this Agreement or any transaction contemplated by this Agreement take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyby this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Dynatech Corp)
Reasonable Best Efforts. Subject (a) Prior to the express provisions of Section 5.4 and Section 5.7 hereofClosing, and upon the other terms and subject to the conditions set forth hereinof this Agreement, each of the parties agrees Parties agree to use their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper prior or advisable under any applicable Laws to consummate and make effectiveeffective the transactions contemplated by this Agreement as promptly as practicable including, as expeditiously as possible but not limited to (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement and the taking of such actions by any third party or Governmental Authority and (ii) the satisfaction of the other Parties' conditions to Closing. In addition, no Party hereto shall take any action after the date hereof that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Authority necessary to be obtained prior to Closing.
(b) Prior to the Closing, each Party shall promptly consult with the other Parties hereto with respect to, provide any necessary information with respect to and provide the other (or its counsel) copies of, all filings made by such Party with any Governmental Authority or any other information supplied by such Party to a Governmental Authority in any event before the Termination Date), the Acquisition connection with this Agreement and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause . Each Party hereto shall promptly inform the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations other of any communication from Governmental Entities and the making of all necessary registrations, declarations 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 (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 Authority regarding any of the transactions contemplated by this Agreement, use reasonable best efforts . If any Party hereto or Affiliate thereof receives a request for additional information or documentary material from any such Governmental Authority with respect to ensure that the Acquisition and the other 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 Parties, an appropriate response in compliance with such request. To the extent that transfers of Permits are required as a result of execution of this Agreement may or consummation of the transactions contemplated hereby, the Sellers shall use their best efforts to effect such transfers.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be consummated deemed to restrict the conduct by the Parties or any of their Affiliates of their businesses, including making any filings under applicable laws necessary or appropriate in connection with any transaction or the consummation of the transactions contemplated thereby, or require Purchaser, Parent or any of their Affiliates to (i) enter into any agreement with any Governmental Authority or to consent to any order, decree or judgment requiring Purchaser, Parent or any of their Affiliates to hold separate or divest, or to restrict the dominion or control of Purchaser, Parent or any of their Affiliates over, any of the assets, properties of businesses of Purchaser, Parent or any of their Affiliates or the Sellers, in each case as promptly as practicable in existence on the terms contemplated date hereof or (ii) defend against any litigation brought by this Agreement and otherwise any Governmental Authority seeking to minimize prevent the effect consummation of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation or vigorously defend an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act and State Takeover Approvals), (iiiii) obtain 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, the Stock Option Agreement or the consummation of the transactions contemplated hereby and thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by businesses, product lines or assets of Parent or any of its Subsidiaries or that otherwise would have a Material Adverse Effect on Parent.
(d) Parent and the Company acknowledge the rights to terminate this AgreementAgreement set forth in Section 7.1(i) and 7.1(j) hereof, but also acknowledge that if they agree at any time after May 6, 2000 that progress is being made toward the satisfactory resolution of any then pending issues under the HSR Act, they will continue to use their reasonable best efforts to ensure that attempt to secure a mutually satisfactory resolution of those issues which will permit the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver closing of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebymerger.
Appears in 1 contract
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to ------------------------ the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement and the Option Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as practicable, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute the defending of any lawsuits or deliver other legal proceedings, whether judicial or administrative, challenging this Agreement or the Option Agreement or the consummation of the Merger or the other transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by, and to fully carry out the purposes of, this Agreement and the Option Agreement. In connection with and without limiting the foregoing, the Company SkyTel and its Board of Directors shall, if any shall (1) take all action reasonably necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement, the AcquisitionOption Agreement, this Agreement the Merger or any of the other transactions contemplated by this Agreement and the Option Agreement and (2) if any state takeover statute or similar statute becomes applicable to this Agreement, use reasonable best efforts the Option Agreement, the Merger or any other transactions contemplated by this Agreement or the Option Agreement, take all action reasonably necessary to ensure that the Acquisition Merger and the other transactions contemplated by this Agreement and the Option Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Option Agreement and otherwise to minimize the effect of such Legal Requirement statute or regulation on this Agreement, the Acquisition (including Option Agreement, the Merger and the other transactions contemplated by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the Option Agreement. Nothing in this Agreement shall be deemed to require WorldCom to agree to, or proffer to, divest or hold separate any assets or any portion of any business of WorldCom, SkyTel or any of their respective Subsidiaries if the Board of Directors of WorldCom determines that so doing would materially impair the benefit intended to be obtained by WorldCom in the Merger. Without limiting the generality of the foregoing, SkyTel shall give WorldCom the opportunity to participate in the defense of any litigation against SkyTel and/or its directors relating to the transactions contemplated herebyby this Agreement and the Option Agreement. This Section 5.05 shall be deemed not to have been breached by SkyTel as a result of any action taken by SkyTel with respect to a Superior Proposal that is expressly permitted under Section 4.02.
Appears in 1 contract
Reasonable Best Efforts. Subject to Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as practicable, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental Entity, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute the defending of any lawsuits or deliver other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company ITG, SCI and its Board their respective Boards of Directors shall, if any shall (1) take all action reasonably necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement, the Acquisition, this Agreement Merger or any of the other transactions contemplated by this Agreement and (2) if any state takeover statute or similar statute becomes applicable to this Agreement, the Merger or any other transactions contemplated by this Agreement, use reasonable best efforts take all action reasonably necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on this Agreement, the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement Merger and the other transactions contemplated herebyby this Agreement.
Appears in 1 contract
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 set forth hereinof this Agreement, including Section 8.02(bl. each of the parties agrees to Company and Parent shall, and each shall cause its Subsidiaries to, use their respective reasonable best efforts to take, or cause to be taken, all actions, 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 Applicable Law to consummate the Merger and other transactions contemplated hereby as promptly as practicable, (x) including (i) preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary Filings, (ii) obtaining as promptly as practicable and thereafter maintaining all Consents required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate the Merger or other transactions contemplated hereby, and complying with the terms and conditions of each Consent and (iii) cooperating to the extent reasonable with the other parties hereto in their efforts to comply with their obligations under this Agreement, including in seeking to obtain as promptly as practicable any required Consents and (y) which includes contesting (which includes by litigation) any (i) action, suit, investigation or proceeding brought by any Governmental Authority in a federal. state or administrative court seeking to enjoin, restrain. prevent. prohibit or make effectiveillegal consummation of the Merger or other transactions contemplated hereby or seeking damages or to impose any terms or conditions in connection
(a) includes taking all actions and doing all things necessary. proper or advisable under Applicable Law (including divestitures, as expeditiously as possible after hold separate arrangements. the date hereof termination. assignment. novation or modification of Contracts (or portions thereof) or other business relationships. the acceptance of restrictions on business operations and the entry into other commitments and limitations) to obtain the governmental approvals described in any event before the Termination Dateclauses (x), (y) and (z) of the Acquisition first sentence of Section 8 02(b) to consummate the Merger and the other transactions contemplated by hereby, so long as such actions would not have and would not reasonably be expected to have, individually or in the aggregate. a Regulatory Material Adverse Effect on Parent or on the Company.
(b) Notwithstanding Section 8 02(a) or anything else in this AgreementAgreement to the contrary, including by using reasonable best efforts to: (i) nothing in this Agreement will obligate or require Parent, Merger Sub or any of their respective Subsidiaries to take or cause the conditions precedent set forth in Article VI to be satisfiedtaken any action (or refrain or cause to refrain from taking any action) or agree or cause to agree to any term, condition or limitation (including, in each case, any of the actions or items referred to in the last sentence of Section 8.02(a)) as a condition to, or in connection with, (iix) obtain all necessary actions the expiration or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making termination of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject any applicable waiting period relating to the limitations set forth hereinMerger under the HSR Act, (y) any other Antitrust Law or (z) obtaining any Parent Required Governmental Authorization or Company Required Governmental Authorization or any other Consent from a Governmental Authority or otherwise, in each case if such action (or refraining from such action), term, condition or limitation would have or would reasonably be expected to have, individually or in the taking aggregate, a Regulatory Material Adverse Effect on Parent or on the Company. "Regulatory Material Adverse Effect" means, with respect to any Person, a material adverse effect on the financial condition. business, revenue or EBITDA of all steps such Person and remedies its Subsidiaries, taken as may be necessary to avoid a whole; provided that, for purposes of determining whether any suit, claim, action, investigation term or proceeding by any Governmental Entitycondition would have or would reasonably be expected to have a Regulatory Material Adverse Effect on the Company. the Company and its Subsidiaries will collectively be deemed to be a company the size of (and with revenue and EB IT DA equal to those of) Parent and its Subsidiaries, taken as a whole (iii) obtain all necessary consentsexcluding, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute or deliver any additional instruments necessary to consummate for the transactions contemplated by, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoingavoidance of doubt, the Company and its Board Subsidiaries); provided, ./iirlher, that, for purposes of Directors shalldetermining whether any action, if any takeover statute term or similar Legal Requirement is condition would have or becomes applicable would reasonably be expected to have a Regulatory Material Adverse Effect on Parent or on the AcquisitionCompany. impacts on Parent, this Agreement the Company or any of their respective Subsidiaries will be aggregated. "EBITDA" means, with respect to any Person, the transactions contemplated by this Agreementsum of (I) consolidated net income, use reasonable best efforts determined in accordance with GAAP, plus (2) without duplication and to ensure that the Acquisition extent deducted in determining such consolidated net income, the sum of(!) consolidated interest expense, (ll) consolidated income tax expense and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise (lll) all amounts attributed to minimize the effect depreciation or amortization, in each case of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement Person and the transactions contemplated herebyits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinherein provided, each of the parties Parties agrees to (i) use its reasonable best efforts to take, or cause to be taken, all actionsaction, 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 applicable laws and regulations or required to be taken by any Governmental Entity or otherwise to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfiedAgreement as promptly as practicable, (ii) obtain all necessary actions or nonactionsfrom any Governmental Entity any consents, licenses, permits, waivers, consents, approvals, authorizations or orders required to be obtained or made by any Party in connection with the authorization, execution and authorizations from Governmental Entities delivery of this Agreement and the consummation of the Merger, and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Exchange Act, and any other applicable federal or state securities laws, and (B) any other applicable law; provided that the Parties shall cooperate with each other in connection with the making of all necessary registrationssuch filings, declarations including (subject to applicable law) providing copies of all such documents to the non-filing party and filings its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith. The Parties shall use 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 (including registrations, declarations all information required to be included in the Proxy Statement and filings with Governmental Entities, if anythe Schedule 13E-3) 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 (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 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. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, use reasonable best efforts the proper officers and directors of each Party to ensure that this Agreement shall take all such necessary or desirable action. Notwithstanding the Acquisition foregoing or any other provision of this Agreement, the Company shall not, without H’s prior written consent, commit to any divestiture transaction or agree to any restriction on its business, and nothing in this Section 4.4 shall require H or its Affiliates to offer, accept or agree to (A) dispose or hold separate any part of its or the Company’s businesses, operations, assets or product lines (or a combination of H’s and the other transactions contemplated by this Agreement Company’s respective businesses, operations, assets or product lines), (B) not compete in any geographic area or line of business, and/or (C) restrict the manner in which, or whether, H, the Company, the Surviving Corporation or any of their Affiliates may be consummated as promptly as practicable carry on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver business in any part of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyworld.
Appears in 1 contract
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Offer, the Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act and State Takeover Approvals), (iiiii) obtain 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, the Stock Option Agreement or the consummation of the transactions contemplated hereby and thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, by this Agreement. In No party to this Agreement shall consent to any voluntary delay of the consummation of the Offer, the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Offer, the Merger and without limiting to consummate the foregoingother transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Board Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of Directors shallaction with respect to, if any takeover statute or similar Legal Requirement is or becomes applicable its ability to retain, the Acquisition, this Agreement Company or any of the transactions contemplated by this Agreementbusinesses, use reasonable best efforts to ensure product lines or assets of Parent or any of its Subsidiaries or that the Acquisition and the other transactions contemplated by this Agreement may be consummated as promptly as practicable otherwise would have a Material Adverse Effect on the terms contemplated by this Agreement and otherwise to minimize the effect of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyParent.
Appears in 1 contract
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 5.2 and Section 5.7 hereof, 5.3 hereof and upon the other terms and subject to the conditions set forth herein, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) cause the causing of the conditions precedent set forth in Article VI to be satisfied, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations 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 the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, and (iv) execute the defending of any suits, claims, actions, investigations or deliver proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay, temporary restraining order or preliminary injunction entered by any court or other Governmental Entity vacated or reversed, and (v) the execution or delivery of 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 Credence and its Board of Directors shall, if any takeover statute or similar Legal Requirement is or becomes applicable to the AcquisitionMerger, this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available)Merger, this Agreement and the transactions contemplated hereby.
Appears in 1 contract
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 set forth hereinin this Agreement, each of the parties agrees to hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable law) to taketake promptly, or cause to be taken, all actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties hereto party in doing, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts to: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities and the making of all necessary registrations, declarations registrations 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 obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by by, any Governmental Entity, (iiiii) obtain obtaining all necessary consents, approvals or waivers from third parties, including all Necessary Consents(iii) defending any lawsuits or other legal proceedings, and whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (iv) execute or deliver subject to Section 4.3, publicly supporting this Agreement and the Merger and (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. .
(b) In connection with and without limiting the foregoing, the Company and shall (i) use 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 no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Acquisition Merger or any of the other transactions contemplated hereby, and (ii) 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 the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement hereby and otherwise to minimize the effect of such Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement Merger and the other transactions contemplated hereby.
(c) In addition, Parent and the Company shall use their respective reasonable best efforts prior to the Effective Time to effect immediately subsequent to the Effective Time the combination (the “Bank Combination”) of the Company Bank with and into the Parent Bank, including causing such banks to enter into a customary plan of bank merger, 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, with such Bank Combination to be effective immediately subsequent to the Effective Time.
Appears in 1 contract
Reasonable Best Efforts. Subject to the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth herein5.1, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, ; (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, the taking of all reasonable steps and remedies as may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity, ; (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary ConsentsConsents to the extent the failure to obtain any such consent, and approval or waiver would prevent or materially hinder, delay or impair any party’s ability to consummate the Merger or other transactions contemplated hereby; (iv) execute the defending of any suits, claims, actions, investigations or deliver proceedings, whether judicial or administrative, 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; and (v) the execution or delivery of 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 board of Directors directors shall, if any takeover statute or similar other Legal Requirement is or becomes applicable to the AcquisitionMerger, this Agreement or any of the transactions contemplated by this Agreement, use reasonable best efforts to ensure that the Acquisition 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 render inapplicable or minimize the effect of such takeover statute or other Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available)Merger, this Agreement and the transactions contemplated hereby. For the avoidance of doubt, “reasonable best efforts” shall require that each party make all reasonable expenditures necessary to meet the obligations set forth above and, if and to the extent reasonable to do so, to litigate to obtain the Necessary Consents and consummate the transactions contemplated by this Agreement.
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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 set forth contained herein, each of the parties agrees Company and Investor agree to use their reasonable best efforts to take, or cause to be taken, all actionsappropriate action, 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 applicable laws and regulations to consummate and make effective, as expeditiously as possible after effective the date hereof (and in any event before the Termination Date), the Acquisition and the other transactions contemplated by this Agreement. In case at any time after Closing Date any further action is necessary or desirable to carry out the purposes of this Agreement, including by using the proper officers and directors of each party to this Agreement shall take all such necessary action. Such reasonable best efforts to: shall include, without limitation, (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making obtaining of all necessary registrations, declarations 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, parties and (iv) execute or deliver any additional instruments governmental authorities necessary to consummate the consummation of the transactions contemplated byby this Agreement and the Ancillary Agreements and (ii) opposing vigorously any litigation or administrative proceeding relating to this Agreement and the Ancillary Agreements or the transactions contemplated hereby or thereby, including, without limitation, promptly appealing any adverse court or agency order. Notwithstanding the foregoing or any other provisions contained in this Agreement to the contrary, neither Investor nor any of its affiliates shall be under any obligation of any kind to enter into any negotiations or to otherwise agree with any Governmental Entity, including but not limited to any governmental or regulatory authority with jurisdiction over the enforcement of any applicable federal, state, local and foreign antitrust, competition or other similar laws, or any other party to fully carry out the purposes sell or otherwise dispose of, this Agreement. In connection hold separate (through the establishment of a trust or otherwise) particular assets or categories of assets or businesses of any of the Company, Investor or any of Investor's affiliates.
(b) The Company shall give and make all required notices and reports to the appropriate persons with respect to the Permits and without limiting Environmental Permits that may be necessary for the foregoing, consummation of the Investment Transactions.
(c) The Company and its Board of Directors shall, if any shall (i) take all action necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement or any of the Acquisition, transactions hereby and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any of the transactions contemplated by this Agreementhereby, use reasonable best efforts take all action necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyby this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Andlinger Capital Xiii LLC)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toincluding: (i) cause the conditions precedent set forth in Article VI to be satisfied, (ii) obtain obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, approvals, orders consents and authorizations approvals from all Governmental Entities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if any) and, subject to the limitations set forth herein, and the taking of all reasonable steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation or vigorously defend an action or proceeding by by, any Governmental EntityEntity (including those in connection with the HSR Act and State Takeover Approvals), (iiiii) obtain 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, the Stock Option Agreement or the consummation of the transactions contemplated hereby and thereby, including all Necessary Consentsseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) execute or deliver the execution and delivery of 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, including without limitation obtaining the waiver, cancellation or voluntary termination of the registration rights listed on Schedule 3.2(b) prior to the Closing by the holders thereof to the extent that they would otherwise be outstanding after the Merger. No party to this Agreement shall consent to any voluntary delay of the consummation of the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld.
(b) Each party shall use reasonable best efforts to ensure that not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement.
(c) Notwithstanding anything to the Acquisition contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Merger and to consummate the other transactions contemplated by hereby, (i) the Company shall not, without Parent's prior written consent, commit to any divestiture transaction or commit to alter or restrict its business or commercial practices in any way, and (ii) neither Parent nor any of its Affiliates shall be required to (A) divest or hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, the Company or any of the businesses, product lines or assets of Parent or any of its Affiliates, or (B) alter or restrict in any way the business or commercial practices of Parent, any of its Affiliates, or the Company.
(d) The Company shall use reasonable best efforts to file, within 30 days of the date of this Agreement may be consummated Agreement, a UCC-1 financing statement (or similar form) with respect to each scanner that has been shipped to a third party warehouse, and for which the Company has received less than all of the cash that was due upon or as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect a result of such Legal Requirement on the Acquisition (including by seeking a waiver of the application of any such Legal Requirement, if available), this Agreement and the transactions contemplated herebyshipment.
Appears in 1 contract
Sources: Merger Agreement (Imatron Inc)
Reasonable Best Efforts. Subject to (a) Upon the express provisions of Section 5.4 and Section 5.7 hereof, and upon the other terms and subject to the conditions set forth hereinin this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, as expeditiously as possible after in the date hereof (and in any event before the Termination Date)most expeditious manner practicable, the Acquisition Merger and the other transactions contemplated by this Agreement, including by using reasonable best efforts toto accomplish the following: (i) the taking of all acts necessary to cause the conditions precedent set forth in Article VI to Closing to be satisfiedsatisfied as promptly as practicable, (ii) obtain the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders consents and authorizations approvals from Governmental Entities Authorities and the making of all necessary registrations, declarations registrations and filings (including registrations, declarations and filings with Governmental Entities, if anyAuthorities and the Necessary Consents) and, subject to the limitations set forth herein, and the taking of all steps and remedies as may be necessary to obtain an approval or waiver from, or to avoid any suit, claim, action, investigation an action or proceeding by any Governmental EntityAuthority, (iii) obtain the obtaining of all necessary consents, approvals or waivers from third parties, including all Necessary Consents, parties and (iv) execute or deliver the execution and delivery of 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 foregoingfirst sentence of this Section 6.3(a), each of the Company and its the Company Board of Directors shall, if any and Parent and the Parent Board shall (A) take all action reasonably necessary to ensure that no state takeover statute or similar Legal Requirement statute or regulation is or becomes applicable to this Agreement, the Acquisition, this Agreement Merger or any of the other transactions contemplated by this Agreement and (B) if any state takeover statute or similar statute becomes applicable to this Agreement, the Merger or any of the other transactions contemplated by this Agreement, use reasonable best efforts take all action reasonably necessary to ensure that the Acquisition 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 Legal Requirement statute or regulation on this Agreement, the Merger and the other transactions contemplated by this Agreement.
(b) Notwithstanding the foregoing or anything else to the contrary in this Agreement:
(i) nothing shall be deemed to require Parent to (1) agree to, or proffer to, divest or hold separate any assets or any portion of any business of Parent or any of its Subsidiaries or, assuming the consummation of the Merger, the Company or any of its Subsidiaries, (2) not compete in any geographic area or line of business, (3) restrict the manner in which, or whether, Parent or any of its Subsidiaries or, assuming the consummation of the Merger, the Company, the Surviving Entity or any of their respective Affiliates may carry on business in any part of the world or restrict the exercise of the full rights of ownership, (4) agree to any terms or conditions that would impose any obligations on Parent or any of its Subsidiaries or, assuming the consummation of the Merger, the Company or any of its Subsidiaries, to maintain facilities, operations, places of business, employment levels, products or businesses or any other restriction, limitation or qualification or (5) make any payments that, in the case of any of clauses (1) through (5), that, if implemented, would, or would reasonably be expected to, individually or when taken together with any other actions of the type described in clauses (1) through (5) above imposed on the Acquisition Company, Parent or any of their respective Subsidiaries, have a Material Adverse Effect regardless of whether any such action would individually have a Material Adverse Effect (including by seeking each, subject to Schedule 6.3(b), a waiver “Negative Regulatory Action”); provided that any actions of the application type described in clauses (1) through (5) above imposed on Parent or its Subsidiaries shall constitute a Negative Regulatory Action if such action would, or would reasonably be expected to, individually or when taken together with any other actions of the type described in clauses (1) through (5) above imposed on the Company, Parent or any of their respective Subsidiaries, have constituted a Material Adverse Effect by reference to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; and
(ii) Parent and Merger Sub shall be required to consent to any divestiture or other structural or conduct relief in order to obtain clearance from any Governmental Authority or to address any legal action brought by any third party in connection with the transaction relating to this Agreement to the extent that such divestiture or other structural or conduct relief or other legal action, if implemented, would not, or would not reasonably be expected to, individually or in the aggregate, result in a Negative Regulatory Action.
(c) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Merger and in connection with any investigation, approval process or other inquiry by or before a Governmental Authority relating to the Merger, including any proceeding initiated by a private party, and (ii) keep the other party informed in all material respects and on a reasonably timely basis of any material communication received by such Legal Requirementparty from, if available)or given by such party to, this Agreement the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding the transactions contemplated herebyMerger.
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