Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties 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 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 Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed). (b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 4 contracts
Samples: Merger Agreement (Aevi Genomic Medicine, Inc.), Merger Agreement (Cerecor Inc.), Merger Agreement (Cerecor Inc.)
Reasonable Best Efforts. (a) Upon the terms The Parties shall cooperate with each other and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, and shall cause its each of their respective Subsidiaries or Representatives to, as the case may be, (i) promptly prepare and file all Filings with Governmental Entities that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement (including the Merger); and (ii) use its reasonable best efforts promptly to (A) obtain all Regulatory Approvals of all Governmental Entities, and to comply with the terms and conditions thereof, and (B) take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the all other parties in doing, all things necessary, proper, proper or advisable under applicable Law or otherwise to consummate and make effective, and to satisfy all conditions to, effective the transactions contemplated by this Agreement in the most expeditious manner practicablepracticable (and, in any event, by no later than the transactions contemplated by End Date). Each Party shall furnish all information reasonably required for any Filing to be made pursuant to this Agreement, including: (i) Section 6.2 and shall have the obtaining of all necessary Permits, waiversright to review in advance, and actions or nonactions from Governmental Entities and each will consult the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromother on, or to avoid an action or proceeding by, any Governmental Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, in each case subject to applicable LawLaws relating to the confidentiality of information, promptly: (A) cooperate and coordinate with the other in the taking all of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order relating to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one handits Subsidiaries or Representatives, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity with respect otherwise relating to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to makethat appears in any such Filing made with, or cause to be madeother written materials submitted to, 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In furtherance and not in limitation of the event that foregoing, each Party shall, and shall cause its respective Subsidiaries to, take any administrative or judicial action or proceeding is instituted and all commercially reasonable actions to avoid (or threatened to be institutedi) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreemententry of, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversedreversed or overturned, or overturned any OrderJudgment, whether temporary, preliminary, preliminary or permanent, that is in effect would restrain, prevent or delay the Closing, including vigorously defending any Proceedings, whether judicial or administrative, challenging this Agreement or the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed, and that prohibits(ii) or eliminate each and every impediment under any applicable Law so as to enable the Closing to occur as soon as possible, preventsincluding proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or restricts otherwise, the sale, divestiture, licensing or disposition of businesses or assets of Parent, the Company or their respective Subsidiaries or otherwise taking or committing to take actions that limit Parent's or its Subsidiaries' freedom of action with respect to, or their ability to retain, any of their respective businesses or assets or those of the Company or its Subsidiaries, in each case, as may be required in order to avoid the entry of, or to effect the dissolution or lift of, any injunction, temporary restraining order, or other order in any Proceeding, which would otherwise have the effect of preventing or delaying the consummation of the transactions contemplated by this Agreement. No Party shall consent to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the request of any Governmental Entity without the consent of the other Parties to this Agreement.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (China Security & Surveillance Technology, Inc.), Agreement and Plan of Merger (China Security & Surveillance Technology, Inc.), Merger Agreement (China Security & Surveillance Technology, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, shall cooperate with the other parties and use (and shall cause its their respective Subsidiaries to, use its to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, 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, proper or advisable to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicablereasonably practicable (and in any event prior to the End Date), the Merger and the other transactions contemplated by this Agreement, including preparing and filing promptly and fully all documentation to effect all necessary or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, consents, registrations, waivers, Permits, authorizations, orders and other confirmations from any Governmental Entity necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution execute and delivery of deliver any additional instruments necessary to consummate the Mergers Merger and to fully carry out the purposes other transactions contemplated by this Agreement and (iv) defend or contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by this Agreement. The , in the case of each of clauses (i) through (iv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, Permits, authorizations and other confirmations relating to Regulatory Laws, which are the subject of Section 6.03(c) and Section 6.03(d).
(b) In furtherance and not in limitation of the foregoing, the Company and Parent shallshall each use its reasonable best efforts to (i) take all action necessary to ensure that no “fair price”, subject “moratorium”, “control share acquisition” or other similar antitakeover statute or similar statute or regulation (collectively, “Takeover Laws”) is or becomes applicable to any of the transactions contemplated by this Agreement and refrain from taking any actions that would cause the applicability of such Takeover Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the transactions contemplated by this Agreement, take all action necessary to ensure that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the transactions contemplated hereby.
(c) Each of the parties hereto agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and make any filing required under any other applicable Regulatory Law with respect to the transactions contemplated by this Agreement (x) in the case of the Notification and Report Form pursuant to the HSR Act within ten (10) Business Days after the date hereof and, (y) in the case of all other filings under any other Regulatory Law, promptly: (A) cooperate as promptly as reasonably practicable following the date hereof, or, in each case, as otherwise agreed to by the Company and coordinate with the other in the taking of the actions contemplated by clauses (i)Parent, (ii), ) supply as promptly as practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable Regulatory Law and (iii) immediately above; use its reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Regulatory Laws and to obtain all consents under any Regulatory Laws that may be required by the FTC, DOJ or any Governmental Entity, so as to enable the parties hereto to consummate the Merger and the other transactions contemplated hereby in the most expeditious manner reasonably practicable (and in any event prior to the End Date). In furtherance and not in limitation of the foregoing, each party hereto shall use its reasonable best efforts to resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any Regulatory Law, including (A) defending any Action challenging this Agreement or the consummation of the transactions contemplated hereby(including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed), (B) supply the proposing, negotiating, committing to, effecting, agreeing to and executing, by settlements, undertakings, consent decrees, hold separate order, stipulations or other agreements with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity or with any other Person the sale divestiture, license, holding separate, behavioral or other operational conditions, and other disposition of and restriction on the businesses, assets, properties, product lines, and equity interests of, or changes to the conduct of business of Parent, the Company or their respective Subsidiaries, (C) creating or terminating relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries and (D) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries, in each case, to the extent necessary to obtain the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Regulatory Laws and to obtain all consents under any Regulatory Laws or to resolve any objections asserted by any Governmental Entity with competent jurisdiction (each such action under the foregoing clauses (A), (B), (C), (D), a “Regulatory Action”). Notwithstanding anything to the contrary in this Section 6.03 or elsewhere in this Agreement, nothing in this Agreement shall (W) require Parent or Merger Sub to undertake (and the Company will not undertake any such action without Parent’s prior written consent) any Regulatory Action if such Regulatory Action would, individually or in the aggregate, reasonably be expected to have a material adverse effect on Parent and its Subsidiaries (including the Surviving Company and its Subsidiaries), taken as a whole after giving effect to the Merger, but measured on a scale relative to the size of the Company and its Subsidiaries, taken as a whole, prior to the Merger, (X) require Parent, the Company or their respective Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing, or (Y) require any of the parties to this Agreement to compensate any third party, commence or participate in litigation or offer or grant any accommodation (financial or otherwise) to any third party to obtain any such consent or approval. Other than with respect to the payment of all filing fees in connection therewith, which will be borne solely by Parent, the parties shall each bear their own costs and expenses of preparing such notifications and filings, including the fees of their respective legal counsel.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) consult and cooperate in all respects with each other in connection with any filing or submission with a Governmental Entity by any Person in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, (ii) keep the other parties hereto promptly informed of any communication received by such party from the FTC, the DOJ or any other Governmental Entity and of any communication received in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement. If Agreement (and in the Companycase of written communications, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on furnish the other handparties with a copy of such communication), receives a request for additional information (iii) permit the other parties to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed filing, submission or documentary material from other communication to any Governmental Entity with respect or private party), and (iv) to the transactions contemplated extent not prohibited by this Agreementthe FTC, then it shall use reasonable best efforts to make, the DOJ or cause to be madesuch other applicable Governmental Entity or private party, as soon as reasonably practicable and after consultation with the case may be, give the 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 parties hereto the opportunity to attend and participate in any meeting with meetings (whether in-person, by teleconference or otherwise), telephone or video calls or other conferences. Notwithstanding the forgoing, 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 party may, as it deems advisable and necessary, reasonably (x) redact materials to protect competitively sensitive information or agree (or permit any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, tollinformation concerning valuation, or extend as necessary to address reasonable attorney-client, attorney work product or other privilege concerns and (y) reasonably designate any applicable waiting period competitively sensitive material provided to the other parties under any applicable Laws, without this Section 6.03(c) as “outside counsel only” (such materials and the prior written consent information contained therein shall be given only to the outside legal counsel of the other (recipient and will not be disclosed by such consent not outside counsel to be unreasonably withheldemployees, conditionedofficers, or delayeddirectors of the recipient, unless express written permission is obtained in advance from the party providing the materials).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Entegris Inc), Merger Agreement (CMC Materials, Inc.), Merger Agreement (CMC Materials, Inc.)
Reasonable Best Efforts. (a) Each party shall make or cause to be made, in cooperation with the other parties and to the extent applicable and as promptly as practicable (and in any event within five (5) Business Days) after the Agreement Date: (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Offer and the Merger; and (ii) all other necessary filings, forms, declarations, notifications, registrations and notices with other Governmental Bodies under any other antitrust, competition, trade regulation (including Japanese Foreign Exchange Law), or other Law relating to the Offer and the Merger, in each case as Parent may deem necessary. Each party shall promptly: (A) respond at the earliest practicable date to any requests for additional information made by any Governmental Body; (B) act in good faith and reasonably cooperate with the other party in connection with any investigation by any Governmental Body; (C) furnish to each other all information required for any filing, form, declaration, notification, registration and notice subject to advice of such party’s antitrust counsel; and (D) share equally all fees and expenses incurred in connection with filings made in connection with this Section 5.5(a). In connection with the foregoing: (1) whenever possible, each party shall give the other party reasonable prior notice of any communication with, and any proposed understanding or agreement with, any Governmental Body regarding any filings, forms, declarations, notifications, registrations or notices, and permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed communication, understanding or agreement with any Governmental Body with respect to the Merger, subject to advice of such party’s antitrust counsel; (2) where reasonably practical, none of the parties hereto shall independently participate in any meeting or conversation, or engage in any substantive conversation with any Governmental Body in respect of any filings or inquiry without giving the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Body, the opportunity to attend and/or participate; (3) if one party is prohibited by applicable Law or by the applicable Governmental Body from participating in or attending any meetings, conferences or conversations, the attending party shall keep the other reasonably apprised with respect thereto; and (4) the parties hereto shall consult and cooperate with one another in connection with any information or proposals submitted in connection with proceedings under or relating to any antitrust Laws.
(b) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of Parent, Purchaser and the parties hereto shall, and Company 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 party or parties hereto in doing, all things reasonably necessary, proper, proper or advisable under applicable Law or otherwise to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner as promptly as practicable, the transactions contemplated by this Agreement, including: (i) the obtaining of including using reasonable best efforts to obtain all necessary Permitsactions or non-actions, waivers, consents, approvals, orders and actions or nonactions authorizations from all Governmental Entities Bodies and the making of other third parties, and make all necessary registrations registrations, declarations and filings (including filings with all Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromBodies, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments that are necessary to consummate the Mergers Offer and the Merger; provided, however, that nothing in this Agreement shall be deemed to fully carry out require Parent or the purposes Company or any Subsidiary thereof to agree to any requirement to divest, license or hold separate by itself or any of this Agreement. The Company and Parent shallits Affiliates shares of capital stock or any business, subject assets or property, or the imposition of any limitation on the ability of any of them 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 information that may be reasonably required in order conduct their business or to effectuate the taking own or exercise control of such actionsbusiness, assets, properties and stock. Each party hereto shall promptly inform Without limiting the other party or parties heretoforegoing, as the case may be, Parent agrees to cause Purchaser to satisfy all of any material communication from any Governmental Entity regarding any of the transactions contemplated by its obligations under this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)Section 5.5.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Lacrosse Footwear Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, includingincluding using reasonable best efforts to accomplish the following: (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as reasonably practicable, (ii) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; Entity and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The In connection with and without limiting the foregoing, Parent, Sub and the Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate shall as promptly as reasonably practicable duly file with the other in United States Federal Trade Commission (the taking “FTC”) and the Antitrust Division of the actions contemplated by clauses Department of Justice (i), (ii), the “Antitrust Division”) the notification and (iii) immediately above; and (B) supply report form required under the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity HSR Act with respect to the transactions contemplated by this Agreement, then it .
(b) Each of Parent and the Company shall use reasonable best efforts to make, or cause to be made, (i) respond as soon promptly as reasonably practicable under the circumstances to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and after consultation with the other party, an appropriate response in compliance with such request, and, if permitted by applicable Law to all inquiries and by any applicable requests received from either 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 any of their respective Subsidiaries to commit to or agreeii) with any Governmental Entity to stay, toll, or not extend any applicable waiting period under any applicable Laws, the HSR Act without the prior written consent of the other party (such consent not to be unreasonably withheld, conditionedconditioned 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 avoid the entry of, or to have lifted, vacated or terminated, any injunction or Judgment that would restrain, prevent or delay the Closing.
(bc) In furtherance and not in limitation of the event that covenants of the parties contained in Sections 5.03(a) and (b), if any administrative objections are asserted or judicial action or proceeding if any suit is instituted (or threatened to be instituted) by a the FTC, the Antitrust Division or any other applicable Governmental Entity or any private party challenging with respect to any of the Mergers transactions contemplated hereby that would prevent or any other transaction contemplated by this Agreementmaterially impede, interfere with, hinder or any other agreement delay the consummation of the transactions contemplated hereby, each of Parent, Sub and the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts efforts, and cause their Affiliates to contest and resist 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 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 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.
Appears in 3 contracts
Samples: Merger Agreement (Teleflex Medical Inc), Merger Agreement (Teleflex Inc), Merger Agreement (Arrow International Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties party hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take, or cause to be taken, promptly all actions, and to do, or cause to be done, promptly and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this AgreementAgreement and the Related Documents, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities Consents required to consummate the transactions contemplated by this Agreement and the making of Related Documents in a timely manner, including any Consent required under any Legal Requirement, Contract, Lease or Easement applicable to the Business and all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromConsents listed in Schedule 5.3, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining defending of all necessary material consents any lawsuits or waivers from third parties; other legal proceedings, whether judicial or administrative, challenging this Agreement or the Related Documents or the consummation of the transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any Governmental Body vacated or reversed, and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, provide the other party’s counsel with advance notice Agreement and the opportunity Related Documents; provided, however, that in no event shall Seller or its Affiliates (including the Subsidiary) be required to attend and participate in pay any meeting with penalty, compensation or other consideration to any Governmental Entity in respect of third party for any filing made thereto in connection with the transactions contemplated by this Agreementsuch Consent. Neither Parent nor the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding Proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party commenced challenging the Mergers or any other transaction proposed transactions contemplated by this AgreementAgreement or the Related Documents, or any other agreement contemplated hereby, each of the Company parties shall cooperate in all respects with Parent, Merger Sub, each other and Second Merger Sub and shall use its respective reasonable best efforts to contest and resist any such action or proceeding Proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this AgreementAgreement or the Related Documents.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Southern Union Co)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 Parties in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, includingincluding using reasonable best efforts to accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) the obtaining of all necessary Permitsactions, waivers, consents and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, by any Governmental Entities; Entity, (iiiii) the obtaining of all necessary material consents 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 by, and to fully carry out the purposes of, this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (iiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers Merger and the other transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The Company .
(b) In connection with and Parent shallwithout limiting the foregoing, subject each Party shall use its reasonable best efforts to applicable Lawfurnish to each other all information required for any filing, promptly: (A) cooperate form, declaration, notification, registration and coordinate with the notice, other in the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any than confidential or proprietary information that may be reasonably required in order not directly related to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on and to keep the other handparty reasonably informed with respect to the status of each clearance, receives approval or waiver sought from a request for additional information 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: (i) 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 documentary material from with any Governmental Entity 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 (ii) permit the other partyto review and discuss in advance, an appropriate response and consider in compliance good faith the views of the other in connection with, any proposed written or any oral communication with any such request, and, if permitted by applicable Law and by any applicable Governmental Entity, provide (iii) not participate in any meeting or have any communication with any such Governmental Entity unless it has given the other party’s counsel an opportunity to consult with it in advance notice and to the extent permitted by such Governmental Entity gives the other the opportunity to attend and participate in therein, (iv) furnish the other with copies of all filings and communications between it and any meeting with any such Governmental Entity in with respect of any filing made thereto in connection with to the transactions contemplated by this Agreement, and (v) 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.
(c) In connection with and without limiting the foregoing, VBV and its managers and Green Plains and its board of directors shall each use their respective reasonable best efforts to: (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement or the Merger or any of the other transactions contemplated by this Agreement and (ii) if any state takeover statute or similar statute becomes applicable to this Agreement, the Merger or any other transactions contemplated by this Agreement, 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 and otherwise to minimize the effect of such statute or regulation on this Agreement, the Merger and the other transactions contemplated by this Agreement. Neither Parent nor the Company Nothing in this Agreement shall commit be deemed to require VBV or Green Plains to agree (to, or permit proffer to, divest or hold separate any assets or any portion of any business of VBV or Green Plains or any of their respective Subsidiaries that is material to commit the business, financial condition or results of operations, of VBV, Green Plains and their respective Subsidiaries (after giving effect to or agree) with any Governmental Entity to staythe Merger), toll, or extend any applicable waiting period under any applicable Laws, without taken as a whole. Without limiting the prior written consent generality of the foregoing, each of VBV and Green Plains shall give the other (such consent not Party the opportunity to be unreasonably withheldparticipate in the defense of any litigation against VBV or Green Plains, conditionedas applicable, and/or its managers or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened directors relating to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Green Plains Renewable Energy, Inc.), Merger Agreement (Green Plains Renewable Energy, Inc.), Merger Agreement (NTR PLC)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Agreement, and subject to Section 5.096.5(c), each of GameStop and the parties hereto shall, and Company shall cause its Subsidiaries to, use its their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, done all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner as promptly as practicable, the transactions contemplated to be performed or consummated by such party in accordance with the terms of this Agreement, including: including (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and Entity, (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated hereby and to fully carry out the purposes of this Agreement. The Company and Parent shall, (iv) the obtaining of all necessary consents, approvals or waivers from third parties, including any such consents, approvals or waivers required in connection with any remedy agreement reached with any Governmental Entity, (v) subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (iSection 6.5(c), the avoidance or the negotiated settlement of each and every impediment under any antitrust, merger control, competition or trade regulation Law (ii)collectively, the “Antitrust and (iiiCompetition Laws”) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated asserted by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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, so as to enable the Closing to occur, and (vi) in the event that each and every impediment identified in Section 6.5(a)(v) cannot be avoided or otherwise remedied in accordance with that provision, then it 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 seeking to have any injunction, stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed. Notwithstanding the foregoing, in the event that (x) the parties are required to defend any lawsuits or other legal proceedings in accordance with clause (vi) above and (y) one of the parties (the “Objecting Party”) in good faith does not wish to participate in the defense of such lawsuits or other legal proceedings, subject to Section 8.1(b)(i), the Objecting Party shall use reasonable best efforts be required to makeparticipate in such defense in accordance with clause (vi) above as long as the non-objecting party pays all of the fees, costs and expenses, including attorneys’ fees, incurred in connection with the defense of the lawsuits or cause to be madeother legal proceedings.
(b) In connection with and without limiting the foregoing, GameStop and the Company shall, as soon promptly as reasonably practicable and after consultation desirable, (A) file with the 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 United States Federal Trade Commission and the opportunity Antitrust Division of the United States Department of Justice the notification and report form required under the HSR Act (the “HSR Filing”); (B) make all notifications or other filings either required under any other applicable Antitrust and Competition Laws or that the Company and GameStop deem advisable, (together with the HSR Filing, the “Antitrust Filings”), in each case with respect 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 ; and (C) respond to any formal or informal request for additional information and documentary material issued under the Company 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 any applicable Antitrust and Competition Laws, without as the prior written consent of the other (such consent not to be unreasonably withheldparties deem appropriate, conditioned, or delayed)in consultation with one another.
(bc) In The obligations of GameStop and the event Company under Section 6.5(a)(v) are limited in that any administrative or judicial action or proceeding is instituted (or threatened i) no arrangement shall be required to be institutedeffective prior to the Effective Time, and (ii) by a Governmental Entity in no event shall GameStop or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parentbe obligated to agree to any such remedy proposal if the taking of any action required by that remedy proposal would be reasonably expected to have, Merger Subafter the Effective Time, a Material Adverse Effect (without giving effect to clause (iii), and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacatedthe final proviso at the end, 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 Agreementdefinition of Material Adverse Effect) on such party.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Electronics Boutique Holdings Corp), Agreement and Plan of Merger (Electronics Boutique Holdings Corp), Agreement and Plan of Merger (Electronics Boutique Holdings Corp)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things actions that are necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicablepracticable (and in any event no later than the Outside Date), the Merger and the other transactions contemplated by this Agreement, includingincluding using reasonable best efforts to accomplish the following: (i) the obtaining of obtain all required consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including as required under any Mid-Con Material Contract or Contango Material Contract, (ii) obtain all necessary Permitsactions or nonactions, waivers, consents, approvals, orders and actions or nonactions authorizations from Governmental Entities and the making of Entities, make all necessary registrations registrations, declarations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary make reasonable best efforts to obtain an approval or waiver from, or to avoid an action or proceeding any Action by, any Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and Entity, (iii) vigorously resist and contest any Action, including administrative or judicial Action, and seek to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the execution Merger and delivery the other transactions contemplated hereby, including by vigorously pursuing all avenues of administrative and judicial appeal and (iv) execute and deliver any additional instruments necessary to consummate the Mergers transactions contemplated hereby and fully to fully carry out the purposes of this Agreement; provided, however, that no Mid-Con Group Entity or Contango Group Entity 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 Contango (with respect to actions taken by the Mid-Con Group Entities) or the Partnership (with respect to actions taken by the Contango Group Entities). The Company Each of the parties hereto shall furnish to each other party such necessary information and Parent shall, subject reasonable assistance as such other party may reasonably request in connection with the foregoing. Subject to applicable LawLaw relating to the exchange of information, promptly: (A) cooperate each party shall have the right to review in advance, and coordinate to the extent practicable each shall consult with the other in the taking connection with, all of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply information relating to the other with any 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 parties heretoparties, as the case may be, and any of their respective Subsidiaries, that appears in any material communication from filing made with, or written materials submitted to, any third party and/or any Governmental Entity regarding any of in connection with the Merger and the other transactions contemplated by this Agreement. If In exercising the Companyforegoing rights, on each party shall act reasonably and as promptly as practicable. Subject to applicable Law and the one handinstructions of any Governmental Entity, each party shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by each party, as the case may be, or Parentany of their respective Subsidiaries, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity and/or third party 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 requesttransactions, and, if permitted by applicable Law and by any applicable Governmental Entityto the extent practicable under the circumstances, shall provide the other party’s party and its 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 filing, investigation or other inquiry in connection with the transactions contemplated hereby. With respect to any information shared by the parties pursuant to this Agreement. Neither Parent nor Section 5.6 that is protected from disclosure under the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stayattorney-client privilege, tollwork product doctrine, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers joint defense privilege or any other transaction contemplated by this Agreement, or any other agreement contemplated herebyprivilege, the Company parties shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its take reasonable best efforts to contest and resist any share such action or proceeding and information in a manner so as 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 preserve the transactions contemplated by this Agreementapplicable privilege.
Appears in 3 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Mid-Con Energy Partners, LP), Merger Agreement (Contango Oil & Gas Co)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to promptly take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate the Offer, consummate and make effective, effective the Merger and to satisfy all conditions to, in the most expeditious manner practicable, the other transactions contemplated by this Agreement, including: including (i) cooperation in the preparation and filing of the Offer Documents, the Schedule 14D-9 and any actions or filings related thereto, (ii) obtaining of all necessary Permitsactions or non-actions, waivers, consents and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; Entity, (iiiii) the obtaining of all necessary material consents consents, approvals or waivers from third parties; , (iv) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, (v) publicly supporting this Agreement and the Merger and (iiivi) the execution executing and delivery of delivering any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The In addition, if at any time prior to the Effective Time any event or circumstance relating to either the Company and or Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with or the other in Purchaser or any of their respective subsidiaries should be discovered by the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Company or parties heretoParent, as the case may be, which should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance.
(b) Parent and the Company shall file as soon as practicable (but not later than ten (10) Business Days in the case of the HSR Act filings) after the date of this Agreement notifications under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Merger and shall respond as promptly as practicable to all inquiries or requests received from the Federal Trade Commission or the Antitrust Division of the Department of Justice or such other domestic or foreign antitrust regulatory authority, as applicable for additional information or documentation and shall 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. The parties shall cooperate with each other in connection with the making of all such filings or responses, including providing copies of all such documents to the other party and its advisors prior to filing or responding
(c) Parent and the Company shall (1) promptly notify the other party of any material communication to that party from any Governmental Entity regarding in respect of any of filing, investigation or inquiry concerning this Agreement or the Transactions contemplated herein; (2) if practicable, permit the other party the opportunity to review in advance all the information relating to Parent or the Company, as the case may be, 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 contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 make, or cause to be made, as soon as reasonably practicable Agreement 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, provide incorporate the other party’s counsel with advance notice and the opportunity to attend and reasonable comments; (3) not participate in any substantive meeting or discussion with any Governmental Entity in respect of any filing made thereto in connection with filing, investigation, or inquiry concerning this Agreement or the transactions contemplated herein unless it consults with the other party in advance, and, to the extent permitted by this Agreement. Neither Parent nor such Governmental Entity, gives the Company shall commit other party the opportunity to or agree attend; and (or permit any 4) furnish the other party with copies of all correspondences, filings, and written communications between them and their respective Subsidiaries to commit to or agree) with and representatives, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to staythis Agreement and the transactions contemplated hereby, toll, or extend except that any applicable waiting period under any applicable Laws, without the prior written consent materials concerning valuation of the other (such consent not to transaction or internal financial information may be unreasonably withheld, conditioned, or delayed)redacted.
(bd) In Each of the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall parties will use its reasonable best efforts to contest obtain as promptly as practicable all Consents of any Governmental Entity or any other person required in connection with, and resist waivers of any such action or proceeding Company Violations and to have vacatedParent Violations, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanentas applicable, that is in effect and that prohibitsmay be caused by, prevents, or restricts the consummation of the transactions contemplated by this Agreement, provided, however, that, notwithstanding any other provision of this Agreement, the Company shall not, without Parent’s prior written consent, and Parent shall not be obligated to, agree to divest, hold separate or otherwise materially restrict the use or operation of any portion of the business or assets of Parent, the Company or the Surviving Corporation or any Subsidiary of any of the foregoing if it would be reasonably expected to have a Material Adverse Effect on Parent, the Company or the Surviving Corporation.
Appears in 3 contracts
Samples: Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/), Merger Agreement (Sybron Dental Specialties Inc)
Reasonable Best Efforts. (a) Upon On the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties 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 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 Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 information that may be reasonably required in order to effectuate the taking of such actions. Each each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest cause the Closing to occur as soon as practicable after the date hereof (but subject to the satisfaction of the conditions set forth in Article VI).
(b) Prior to the Closing each party hereto (at its own expense) shall use its reasonable best efforts to obtain all consents and resist approvals from third parties necessary or appropriate to permit the consummation by such party of the Transactions.
(c) Following the date hereof, each party hereto shall file promptly any forms required under applicable law and take any other action reasonably necessary in connection with obtaining any approvals and the expiration or termination of any waiting periods under the HSR Act and the EC Merger Regulation and the merger regulations of individual countries in Europe, in each case to the extent applicable to the Transactions. Notwithstanding anything to the contrary contained herein, neither Liberty nor Vivendi nor any of their respective Affiliates shall be required by this Section 5.01 to: (i) pay any consideration that is not de minimus, (ii) surrender, modify or amend in any respect any material license or contract (including this Agreement, the Shareholders Arrangements or the Transaction Documents), (iii) hold separately (in trust or otherwise), divest itself of, or otherwise rearrange the composition of, any assets, (iv) agree to any limitations on any such person's freedom of action with respect to future acquisitions of assets or proceeding with respect to any existing or future business or activities or on the enjoyment of the full rights or ownership, possession and to have vacated, lifted, reverseduse of any asset now owned or hereafter acquired by any such person, or overturned (v) agree to any Order, whether temporary, preliminaryof the foregoing or any other conditions or requirements of any Governmental Entity or other person that are materially adverse or burdensome.
(d) In the event that notification under the EC Merger Regulation, or permanentunder the merger regulations of individual countries in Europe, that is in effect and that prohibits, prevents, or restricts necessary for the consummation of the transactions contemplated by multiThematiques Transaction, and the European Commission elects to extend its inquiry beyond a "phase I" inquiry, or another comparable commission elects a similar inquiry that would otherwise similarly delay the Closing, then the parties shall negotiate in good faith to enter into such amendments of this Agreement as may be required so that: (i) the obligations of the parties to consummate the Transactions shall not be subject to any approvals or the expiration or termination of any waiting periods under the EC Merger Regulation or the merger regulation of such individual country in Europe necessary for the consummation of the multiThematiques Transaction and the Closing Date shall not be delayed until such approvals are obtained or such waiting periods have expired or terminated; and (ii) Liberty will receive all the economic benefits of the multiThematiques Transaction on the Closing Date; provided, however, that if Vivendi shall propose such an arrangement pursuant to which the Liberty Parties will receive on the Closing Date the same number of Vivendi ADSs, in the same manner, and on the same terms and conditions as provided in this Agreement, and subject to no restrictions other than those to which they would be subject if this Section 5.01(d) were not applicable, then the parties hereto shall execute such appropriate amendments of this Agreement as may be required to effect such arrangement.
(e) Vivendi shall obtain all consents, approvals, releases or waivers, as applicable, with respect to the right of first refusal under Section 5.2 of the multiThematiques Cooperation Agreement and the first and second rank preemptive right under Article 13 of the Articles of Association, in each case necessary for the consummation of the multiThematiques Transaction, and shall ensure that no shareholder of multiThematiques asserts such right of first refusal or preemptive rights. Vivendi shall use its reasonable best efforts to obtain such consents, approvals, releases or waivers, as applicable, as promptly as practicable so as not to delay the Closing Date.
Appears in 3 contracts
Samples: Merger Agreement (Vivendi Universal), Merger Agreement (Usa Networks Inc), Merger Agreement (Usa Networks Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement Agreement, the Company and Parent shall cooperate with each other and use (including those contained in this Section 5.09), each of the parties hereto shall, and shall cause its their respective Subsidiaries to, use its to use) their respective reasonable best efforts to take, take or cause to be taken, taken all actions, and to do, do or cause to be donedone all things, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper, proper or advisable on their part under this Agreement and applicable Law to consummate and make effectiveeffective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including (a) preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to satisfy obtain as promptly as practicable all conditions toconsents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the most expeditious manner practicable, Merger or any of the other transactions contemplated by this Agreement, including: (ib) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 using reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with avoid the 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 entry 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that is in effect and that prohibitswould delay, preventsrestrain, prevent, enjoin or restricts otherwise prohibit consummation of the transactions contemplated by this Agreement (collectively, an “Order”), and (c) in the event that any permanent, preliminary or temporary injunction, decision, restraining order or other order is issued, using reasonable best efforts to lift or rescind any injunction, decision, restraining order or other order adversely affecting the ability of the parties to consummate the Merger and the transactions contemplated in this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Cheniere Energy Inc), Merger Agreement (Cheniere Energy Inc), Merger Agreement (Cheniere Energy Partners LP Holdings, LLC)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to conditions of this Agreement, following the conditions set forth delivery of an Election Notice in this Agreement (including those contained in this accordance with Section 5.09)1.1, each of the parties hereto shall, Controlling Partnership and KPE shall cause its Subsidiaries 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, ensure that the conditions set forth in Section 6 of this Agreement are satisfied and to satisfy all conditions to, in the most expeditious manner practicable, consummate the transactions contemplated by this AgreementAgreement as promptly as practicable, including: including using its reasonable best efforts to (i) obtain (and to cooperate with the obtaining of all necessary Permitsother party to obtain) any consent, waiversauthorization, and actions order or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromof, or to avoid an action or proceeding any exemption by, any Governmental Entities; (ii) the obtaining of all necessary material consents Entity or waivers from any third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 information that may be reasonably party which is required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 obtained in connection with the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to Agreement from Governmental Entities or agree third parties, (or permit any of their respective Subsidiaries to commit to or agreeii) making all registrations, notifications and filings with any Governmental Entity or any third party that are required to staybe made in connection with the transactions contemplated by this Agreement and (iii) resolve any objections asserted or suits instituted with respect to any of the transactions contemplated hereby, tollby any Governmental Entity, which, if not resolved, would reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to require the Controlling Partnership or KPE to take, or extend agree to take, any applicable waiting period under any applicable Lawsaction if the taking of such action would reasonably be expected to have, without individually or in the prior written consent of aggregate, a material adverse effect on the other Controlling Partnership (such consent not after giving effect to be unreasonably withheld, conditioned, or delayedthe Contribution Transactions).
(b) In Each of the event that Controlling Partnership and KPE shall in connection with the efforts referenced in Section 4.3(a) (i) promptly cooperate with and furnish information to the other in connection with any administrative or judicial action or proceeding is instituted (or threatened required to be institutedtaken pursuant to Section 4.3(a), and (ii) permit the other to review any communication given by a it to, and consult with each other in advance of any meeting or conference with, any Governmental Entity or private party challenging in connection with the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Subforegoing, and Second Merger Sub to the extent permitted by law, give the other the opportunity to attend and shall use its reasonable best efforts to contest participate in such meetings 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 Agreementconferences.
Appears in 3 contracts
Samples: Investment Agreement, Investment Agreement (KKR & Co. L.P.), Investment Agreement (KKR & Co. L.P.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to promptly take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate the Offer, and to consummate and make effective, effective the Merger and to satisfy all conditions to, in the most expeditious manner practicable, the other transactions contemplated by this AgreementAgreement as soon as practicable, including: including (i) cooperation in the preparation and filing of the Offer Documents, the Schedule 14D-9 and any actions or filings related thereto, (ii) obtaining of all necessary Permitsactions or non-actions, waivers, consents, clearances and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entities; Entity, (iiiii) the obtaining of all necessary material consents consents, approvals or waivers from third parties; , (iv) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer, the Merger or the other transactions contemplated by this Agreement, (v) publicly supporting this Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement, (vi) satisfying the Tender Offer Conditions and the conditions to the consummation of the Merger set forth in Article VII and (iiivii) the execution executing and delivery of delivering any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The In addition, if at any time prior to the Effective Time any event or circumstance relating to either the Company, Parent, the Purchaser or any of their respective subsidiaries should be discovered by the Company and Parent shall, 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 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 parties heretoParent, as the case may be, which should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance.
(b) Parent and the Company shall file as soon as practicable (but not later than five (5) Business Days in the case of any filing under the HSR Act and seven (7) Business Days in the case of any filings under foreign statutes or regulations) after the date of this Agreement notifications under the HSR Act and under any material applicable foreign statutes or regulations applicable to the Merger and shall respond as promptly as practicable to all inquiries or requests received from the Federal Trade Commission or the Antitrust Division of the Department of Justice or such other domestic or foreign antitrust regulatory authority, as applicable for additional information or documentation and shall 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. The parties shall cooperate with each other in connection with the making of all such filings or responses, including providing copies of all such documents to the other party and its advisors prior to filing or responding
(c) Parent and the Company shall (i) promptly notify the other party of any communication to that party from any Governmental Entity regarding in respect of any of filing, investigation or inquiry concerning this Agreement or the transactions contemplated hereby; (ii) if practicable, permit the other party the opportunity to review in advance all the information relating to Parent or the Company, as the case may be, 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 contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 make, or cause to be made, as soon as reasonably practicable Agreement 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, provide incorporate the other party’s counsel with advance notice and the opportunity to attend and reasonable comments; (iii) not participate in any substantive meeting or discussion with any Governmental Entity in respect of any filing made thereto in connection with filing, investigation, or inquiry concerning this Agreement or the transactions contemplated herein unless it consults with the other party in advance, and, to the extent permitted by this Agreement. Neither Parent nor such Governmental Entity, give the Company shall commit other party the opportunity to or agree attend; and (or permit any iv) furnish the other party with copies of all correspondences, filings, and written communications between them and their respective Subsidiaries to commit to or agree) with and representatives, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to staythis Agreement and the transactions contemplated hereby, toll, or extend except that any applicable waiting period under any applicable Laws, without the prior written consent materials concerning valuation of the other (such consent not to transaction or internal financial information may be unreasonably withheld, conditioned, or delayed)redacted.
(bd) In Each of the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall parties will use its reasonable best efforts to contest obtain as promptly as practicable all Consents of any Governmental Entity or any other Person required in connection with, and resist waivers of any such action or proceeding Company Violations and to have vacatedParent Violations, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanentas applicable, that is in effect and that prohibitsmay be caused by, prevents, or restricts the consummation of the transactions contemplated by this Agreement, provided, however, that, notwithstanding any other provision of this Agreement, the Company shall not, without Parent’s prior written consent, and Parent shall not be obligated to, agree to divest, hold separate or otherwise materially restrict the use or operation of any portion of the business or assets of Parent, the Company or the Surviving Corporation or any subsidiary of any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Danaher Corp /De/), Merger Agreement (Tektronix Inc), Merger Agreement (Raven Acquisition Corp.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things actions that are necessary, proper, proper or advisable under this Agreement and applicable Law to consummate and make effective, and to satisfy all conditions to, in effective the most expeditious manner Transactions as promptly as practicable, including using reasonable best efforts to accomplish the transactions contemplated by this Agreement, includingfollowing: (i) the obtaining of obtain all necessary PermitsThird Party Approvals, waiversincluding under any Contract to which Monsoon or Indigo or any of their respective Subsidiaries is party or by which such Person or any of their respective properties or assets may be bound and those Third Party Approvals set out in Section 7.04(a) of the Monsoon Disclosure Letter and the Indigo Parent Disclosure Letter, (ii) obtain all necessary Governmental Approvals (including those in connection with applicable Competition Laws), and actions or nonactions from Governmental Entities and the making of make all necessary registrations registrations, declarations and filings (including filings with Governmental Entities) with, and the taking of take all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding any Action by, any Governmental Entities; Entity (iiincluding in connection with applicable Competition Laws) or to cause the obtaining expiration or termination of all necessary material consents or waivers from third parties; and the applicable waiting periods under any applicable Competition Laws, (iii) resist, contest or defend any Actions (including administrative or judicial Actions) challenging this Agreement or any other Transaction Document or the execution consummation of the Transactions, including seeking to have vacated, lifted, reversed or overturned any Judgment that is in effect and delivery that could restrict, prevent or prohibit consummation of the Transactions, and (iv) execute and deliver any additional instruments necessary to consummate the Mergers Transactions and fully to fully carry out the purposes of this Agreement and the other Transaction Documents. In connection with the foregoing, each party shall as promptly as reasonably practicable (i) supply any additional information and documentary material that may be requested by any Governmental Entity pursuant to any applicable Competition Laws and (ii) furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request.
(b) In furtherance and not in limitation of Section 7.04(a), each of Indigo Parent and Monsoon shall, and shall cause their respective Affiliates to, make or cause to be made all the filings required under applicable Competition Laws set forth in Section 7.04(b) of the Monsoon Disclosure Letter and the Indigo Parent Disclosure Letter (collectively, the “Required Competition Filings”) with respect to the Transactions as promptly as practicable after the date of this Agreement. The Company and Parent shall, subject Subject to applicable LawLaw and the instructions of any Governmental Entity, promptly: Indigo Parent and Monsoon shall (A) cooperate and coordinate with the keep each other in the taking reasonably apprised of the actions contemplated by clauses (i)status of matters relating to the completion of the Transactions, (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall including promptly inform furnishing the other party with copies of notices or parties heretoother written communications received by Indigo Parent or Monsoon, as the case may be, or any of any material communication their respective Subsidiaries, from any Governmental Entity regarding any of in connection with the transactions contemplated by this Agreement. If the CompanyRequired Competition Filings, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the (B) consult with each 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 Required Competition Filings and provide the other party and its counsel with the opportunity to make, or cause review and comment on any written materials to be madesubmitted to any Governmental Entity in connection therewith in advance of such submission and shall give due consideration to the additions, as soon as deletions or changes suggested thereto by such other party and its counsel, (C) to the extent reasonably practicable and practicable, engage in any substantive communications with any Governmental Entity in connection with the Required Competition Filings only after prior consultation with the other party, an appropriate response in compliance with such request, and, if permitted by applicable Law party and by its counsel (and taking into account any applicable Governmental Entity, reasonable comments and requests of the other party and its counsel) and (D) provide the other party’s party and its counsel with advance notice and the opportunity to attend and participate in any meeting meetings and conferences with any Governmental Entity in respect of any filing made thereto filing, investigation or other inquiry in connection with the transactions contemplated by this AgreementRequired Competition Filings. Neither In connection with the foregoing, each of Indigo Parent nor and Monsoon shall act reasonably and as promptly as practicable.
(c) None of the Company parties hereto shall commit to voluntarily extend any waiting period under any applicable Competition Laws or agree (or permit enter into any of their respective Subsidiaries to commit to or agree) agreement with any Governmental Entity to stay, toll, delay or extend any applicable waiting period under any applicable Laws, without not to consummate the Transactions except with the prior written consent of the other parties (such consent not to be unreasonably withheld, conditioned, conditioned or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened delayed and which reasonableness shall be determined in light of each party’s obligation to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist take all actions necessary or advisable to cause the expiration or termination of the applicable waiting periods under any such action or proceeding applicable Competition Laws and to have vacatedobtain all Governmental Approvals under any applicable Competition Laws, liftedso as to enable the parties hereto to consummate and make effective, reversedas promptly as practicable, the Transactions).
(d) Nothing in this Agreement shall require (i) the parties or any of their respective Subsidiaries to (A) pay any consideration, incur any Liability or transfer any value to any Person in connection with any Governmental Approval, other than filing fees paid to Governmental Entities, or overturned any Order(B) sell, whether temporaryhold separate, preliminaryalter an ownership interest in assets or otherwise dispose of or conduct their business in a specified manner, or permanententer into a voting trust arrangement, that is proxy arrangement, “hold separate” agreement or similar agreement or arrangement with respect to the assets, operations or conduct of their business in effect and that prohibits, preventsa specified manner, or restricts consummation commit or agree to any of the transactions contemplated by this Agreementforegoing (collectively, a “Regulatory Undertaking”), in order to obtain any Governmental Approval or to remove any impediments to the Transactions under applicable Competition Laws or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action under any Competition Laws, if the effect of such Regulatory Undertaking would reasonably be expected to have a material adverse impact on the combined business of Indigo, Monsoon and their respective Subsidiaries, or (ii) any Affiliate of Indigo Parent (other than the Indigo Group Companies) to take (or refrain from taking) any action, either with respect to its assets, its operations, the conduct of its business or otherwise, in connection with, or in order to obtain, any Governmental Approval in connection with the Transactions.
Appears in 3 contracts
Samples: Transaction Agreement, Transaction Agreement (Naspers LTD), Transaction Agreement (MakeMyTrip LTD)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.095.08), each of the parties 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 in doing, all things necessary, proper, 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: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the 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 Mergers 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: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any applicable the Foreign Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, 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 to be provided as promptly as reasonably practicable to Governmental Entities with jurisdiction over the Foreign 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 any consents and filings under any Foreign Antitrust Laws as promptly as practicable following 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 Foreign Antitrust Laws and (ii) subject to the terms set forth in Section 5.08(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 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 instituted) by a Governmental Entity or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, Parent and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, none of Parent, Merger Sub or any of their Affiliates shall be required to defend, contest or resist any action or proceeding, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Order, in connection with the transactions contemplated by 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, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, 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 Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries; provided that, if requested by Parent, the Company 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 Company in the event the Closing occurs.
Appears in 2 contracts
Samples: Merger Agreement (Access to Money, Inc.), Merger Agreement (Cardtronics Inc)
Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement (including Section 5.3(c)), each party will use its reasonable best efforts to prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Mergers and the other transactions contemplated by this Agreement. Upon the terms and subject to the conditions set forth in this Agreement hereof (including those contained in this Section 5.095.3(c)), each of the parties hereto shall, and shall cause its Subsidiaries to, party will use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary to satisfy the conditions to Closing set forth herein and to assist consummate the Mergers and cooperate with the other parties 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.
(b) Without limiting the foregoing, but subject to Section 5.3(c), the reasonable best efforts of Anthem and Cigna shall include Anthem and its Affiliates and Cigna and its Affiliates taking any and all actions necessary to avoid each and every impediment under the HSR Act, any Healthcare Law, antitrust law, insurance law or other applicable law that may be asserted by or on behalf of any Governmental Entity with respect to this Agreement, the Mergers and the other transactions contemplated hereby or that arises under or relates to any contracts between either Cigna or Anthem and any Governmental Entity, so as to enable the Closing to occur as promptly as practicable, including any of the following actions requested by or on behalf of any Governmental Entity, or necessary or appropriate to (I) obtain all Necessary Consents; (II) resolve any objections that may be asserted by or on behalf of any Governmental Entity with respect to the Mergers and the other transactions contemplated hereby; and (III) prevent the entry of, and have vacated, lifted, reversed or overturned, any order that would prevent, prohibit, restrict or delay the consummation of the Mergers and the other transactions contemplated hereby:
(i) comply with all restrictions and conditions, if any, imposed, compelled, required or requested by any Governmental Entity in connection with granting any Necessary Consent of any such Governmental Entity or in connection with the expiration or termination of any applicable waiting period under the HSR Act or any other antitrust laws or any clearance under any Healthcare Laws, insurance laws or other applicable laws including: (I) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, disposition, license or other disposition of any Subsidiaries, operations, divisions, businesses, product lines, contracts, customers or assets of Anthem or any of its Affiliates (including Cigna or any of its Subsidiaries), (II) taking or committing to take such other actions that may limit or impact Anthem’s or any of its Subsidiaries’ or Affiliates’ (including Cigna’s or any of its Subsidiaries’) freedom of action with respect to, or its ability to retain, any of Anthem’s or any of its Subsidiaries’ or Affiliates’ (including Cigna’s or any of its Subsidiaries’) operations, divisions, businesses, products lines, contracts, customers or assets and (III) entering into any orders, settlements, undertakings, contracts, consent decrees, stipulations or other agreements to effectuate any of the foregoing or in order to vacate, lift, reverse, overturn, settle or otherwise resolve any order that prevents, prohibits, restricts or delays the consummation of the Mergers and the other transactions contemplated hereby, in any case, that may be issued by any court or other Governmental Entity;
(ii) agree to (I) enter into, suspend, amend or terminate any contract or other business relationship of Anthem or any of its Subsidiaries or Affiliates or Cigna or any of its Subsidiaries or Affiliates (including any contract with any Governmental Entity) and (II) any additional obligations relating to any contract imposed by any Governmental Entity, in each case in connection with granting any Necessary Consent of any such Governmental Entity or in connection with the expiration or termination of any applicable waiting period under the HSR Act or any other antitrust laws or any clearance under any Healthcare Laws, insurance laws or other applicable laws; and
(iii) oppose fully and vigorously (I) any administrative or judicial action or proceeding that is initiated (or threatened to be initiated) challenging this Agreement, the Mergers or the other transactions contemplated hereby and (II) any request for, or the entry of, and seek to have vacated or terminated, any order that could restrain, prevent or delay the consummation of the Mergers and the other transactions contemplated hereby, including, in the case of either clause (I) or clause (II) by defending through litigation, any action asserted by any Person in any court or before any Governmental Entity, and vigorously pursuing all available avenues of administrative and judicial appeal.
(c) Nothing contained in this Section 5.3 or in any other provision of this Agreement shall be construed as requiring Anthem to agree to any terms or conditions that would (i) the obtaining impose any limitations on Anthem’s ownership or operation of all necessary Permitsor any portion of its or Cigna’s, waiversor any of their respective Subsidiaries’, businesses or assets, or compel Anthem or any of its Subsidiaries to dispose of or hold separate all or any portion of its or Cigna’s, or any of their respective Subsidiaries’, businesses or assets, (ii) impose any limitations on the ability of Anthem to acquire or hold or to exercise full rights of ownership of Cigna Common Stock, (iii) impose any obligations on Anthem or any of its Subsidiaries or Cigna or any of its Subsidiaries in respect of or relating to Anthem’s or any of its Subsidiaries’ or Cigna’s or any of its Subsidiaries’ facilities, operations, places of business, employment levels, products or businesses, (iv) require Anthem or any of its Subsidiaries or Cigna or any of its Subsidiaries to make any payments or (v) impose any other obligation, restriction, requirement, limitation, qualification, condition, remedy or other action, which, in the case of any such term or condition described in clauses (i) through (v) above, would have, or would reasonably be expected to have, individually or in the aggregate with all other such terms and actions conditions, a material adverse effect on Anthem, Cigna and their respective Subsidiaries, taken as a whole, after giving effect to the Mergers, including the synergies expected to be realized from the Mergers (a “Burdensome Term or nonactions Condition”) (it being agreed that, for purposes of determining whether any such term or condition would be a Burdensome Term or Condition, impacts on the synergies expected to be realized from Governmental Entities the Mergers that are publicly disclosed by either Anthem or Cigna in accordance with this Agreement shall be taken into account).
(d) In furtherance and not in limitation of the making foregoing, each party hereto agrees to make an appropriate filing of all necessary registrations a Notification and filings Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable after the date hereof (including but, in any event, no more than twenty (20) Business Days following the date of this Agreement) and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act.
(e) In furtherance and not in limitation of the foregoing, the parties agree that each party shall as promptly as practicable make such filings with Governmental Entities) Entities as are required in connection with this Agreement and the taking transactions contemplated hereby on its respective behalf. Anthem and Cigna agree that Anthem (in consultation with Cigna) shall make and control the “Form A” filings and, to the extent practicable, the other regulatory filings required to be made with the domiciliary insurance or managed health care regulator of all steps each Subsidiary of Cigna that is an insurance company or health maintenance organization (or similar entity). Subject to applicable law, Anthem and Cigna shall, as may be necessary promptly as practicable after receipt thereof, provide each other with copies of any written comments and advise the other party of any oral comments with respect to obtain an approval the “Form A” filings or waiver fromother regulatory filings from each applicable Governmental Entity, and prior to submitting any filing, substantive written communication, correspondence or other information or response by such party or any or its representatives, on the one hand, to any Governmental Entity, or to avoid an action or proceeding by, members of the staff of any Governmental Entities; (ii) Entity, on the obtaining other hand, subject to Section 5.2, the submitting party shall permit the other party and its counsel a reasonable opportunity to review in advance, and consider in good faith the comments of all necessary material consents the other party provided in a timely manner, in connection with any such filing, communication, correspondence, information or waivers from third parties; response. Anthem, in consultation with Cigna, shall take the lead in coordinating communications with any Governmental Entity and (iii) developing strategy for responding to any investigation or other inquiry by any Governmental Entity related to any of the execution Necessary Consents. Subject to Section 5.2 and delivery the terms and conditions of the Confidentiality Agreement, Anthem and Cigna shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing. To the extent practicable under the circumstances, none of the parties hereto shall agree to participate in any substantive meeting or conference with any Governmental Entity, or any member of the staff of any additional instruments necessary Governmental Entity, in respect of any filing, proceeding, investigation (including any settlement of the investigation), litigation, or other inquiry related to the Mergers unless it consults with the other party in advance and, where permitted, allows the other party to participate. Neither party shall be required to comply with any of the foregoing provisions of this Section 5.3(e) to the extent that such compliance would be prohibited by applicable law. The parties further covenant and agree not to voluntarily extend any waiting period associated with any Necessary Consent or enter into any agreement with any Governmental Entity not to consummate the Mergers and to fully carry out the purposes other transactions contemplated hereby, except with the prior written consent of this Agreement. The Company and Parent the other party hereto.
(f) Neither Cigna nor Anthem shall, subject and each of them shall cause its Affiliates not to applicable Lawdirectly or indirectly, promptlyenter into, amend or terminate any contract, or acquire, purchase, lease or license (or agree to acquire, purchase, lease or license), by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, if doing so would or would reasonably be expected to: (Ai) cooperate impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any Necessary Consent or the expiration or termination of any applicable waiting period under the HSR Act; (ii) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the Mergers and coordinate with the other in the taking of the actions transactions contemplated by clauses (i), (ii), and hereby; (iii) immediately abovematerially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) prohibit or prevent or materially delay the consummation of the Mergers and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by hereby.
(g) Notwithstanding anything in this Agreement. If Section 5.3 or any other provision in this Agreement to the Companycontrary, in no event shall (i) Anthem or any Anthem Subsidiary, on the one hand, or Parent, Merger Sub, Cigna or Second Merger Subany Cigna Subsidiary, on the other hand, receives a request for additional information be required to agree to take any action that is not conditioned upon the consummation of the Merger or documentary material from (ii) Cigna or any Governmental Entity with respect Cigna Subsidiary agree to the transactions contemplated by this Agreementany term, then it shall use reasonable best efforts to makecondition, obligation, restriction, requirement, limitation, qualification, remedy 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, 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 action in connection with the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit obtaining of any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, Necessary Consent without the prior written consent of the other Anthem (such which consent shall not to be unreasonably withheld, conditioned, delayed or delayedconditioned if doing so would be inconsistent with Anthem’s obligations under this Section 5.3).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cigna Corp), Merger Agreement (Anthem, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, Caremark and CVS shall cause its Subsidiaries 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 in doing, all things necessary, proper, proper or advisable under Applicable Law to consummate the Merger and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the other transactions contemplated by this Agreement, including: including (i) the obtaining of preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary Permitsfilings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, waivers, licenses, orders, registrations, permits, authorizations, clearances and actions or nonactions other confirmations required to be obtained from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents Authority or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary other Third Party that are necessary, proper or advisable to consummate the Mergers Merger and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If ; provided that the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from parties hereto understand and agree that in no event shall any Governmental Entity with respect to the transactions contemplated party be required by this AgreementSection 8.01 or any other provision of this Agreement (i) to enter into any settlement, then it shall use reasonable best efforts to makeundertaking, consent decree, stipulation 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, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting agreement with any Governmental Entity in respect of any filing made thereto Authority in connection with the transactions contemplated hereby or (ii) to divest or otherwise hold separate (including by this Agreement. Neither Parent nor the Company shall commit to establishing a trust or agree otherwise), or take any other action (or permit otherwise agree to do any of the foregoing) with respect to any of its Subsidiaries or any of their respective Affiliates’ businesses, assets or properties in any such case in (i) or (ii) that would reasonably be expected to (x) materially and adversely diminish the benefits expected to be derived by the parties on the date of this Agreement from the combination of CVS and Caremark via the Merger (such combined business to be taken as a whole), in such a manner that such party would not have entered into this Agreement in the face of such materially and adversely diminished benefits or (y) otherwise have a Material Adverse Effect after the Effective Time on CVS and its Subsidiaries to commit to or agree(including the Surviving Corporation), taken as a whole, ignoring for this purpose only clause (vi) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other definition of Material Adverse Effect insofar as it relates to the matters under consideration with respect to the applicable provision of this Agreement (such consent not to be unreasonably withheldas described in this clause (y), conditioned, or delayeda “Regulatory Material Adverse Effect”).
(b) In furtherance and not in limitation of the event that any administrative or judicial action or proceeding is instituted (or threatened foregoing, each of CVS and Caremark shall make an appropriate filing of a Notification and Report Form pursuant to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects HSR Act with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts respect to contest 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 Agreementhereby as promptly as practicable and in any event within thirty (30) Business Days of 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 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.
Appears in 2 contracts
Samples: Merger Agreement (Caremark Rx Inc), Merger Agreement (CVS Corp)
Reasonable Best Efforts. (a) Upon the terms and subject Prior to the conditions set forth in this Agreement (including those contained in this Section 5.09), each termination of the parties hereto Merger Agreement or the Closing, TD Bank shall, and shall cause its Affiliates (which for purposes of this letter agreement shall exclude TD Ameritrade and its Subsidiaries and controlled Affiliates) to, use its reasonable best efforts to take, obtain the approvals set forth in Section 2 and any other approvals it or cause its Affiliates are required to be taken, all actions, and to do, or cause to be done, and to assist and cooperate obtain in connection with the Transactions (the approvals set forth in Section 2 and such other parties approvals collectively, the “Regulatory Approvals”). In furtherance and not in doing, all things necessary, proper, or advisable to consummate and make effective, and to satisfy all conditions tolimitation of the foregoing, in connection with obtaining any of the most expeditious manner practicableRegulatory Approvals, the transactions contemplated by TD Bank, its Affiliates and its Subsidiaries shall not be required under any provision of this Agreement, including: letter agreement to (i) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the obtaining of all necessary Permitssale, waiversdivesture, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromdisposition, or license of any assets, properties, products, rights, services or businesses of TD Bank, its Subsidiaries or its Affiliates, or any interest therein, or agree to avoid an action any other structural or proceeding byconduct remedy, any Governmental Entities; (ii) the obtaining otherwise take or commit to take any actions that would limit TD Bank’s, its Subsidiaries or its Affiliates’ freedom of all necessary material consents action with respect to, or waivers from third partiesits or their ability to retain, any assets, properties, products, rights, services or businesses of TD Bank, its Subsidiaries or its Affiliates, or any interest or interests therein; and (iii) the execution and delivery of take any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: action that would result in (A) cooperate and coordinate with TD Bank being deemed to “control” Schwab as that term is interpreted by the other Federal Reserve Board under the BHC Act or HOLA or (B) Schwab being deemed to be in the taking “control” of any of the actions contemplated TD Subsidiary Banks as that term is interpreted by the Federal Reserve Board under the BHC Act or HOLA or (iv) agree to do any of the foregoing, in each case of clauses (i), (ii) and (iv), if such action would reasonably be expected to have a material adverse effect on TD Bank and its Subsidiaries, taken as a whole, in each case measured on a scale relative to the size of TD Ameritrade and its Subsidiaries, taken as a whole (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by actions described in this Agreement. If proviso, other than proposing or negotiating (but not committing to or effecting) the Companyactions as set forth in clause (i) of this proviso, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity “Burdensome Condition”); provided that this sentence shall not apply with respect to the transactions contemplated Noncontrol Determinations, which shall be governed solely 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayedSection 3(b).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Schwab Charles Corp), Merger Agreement (Td Ameritrade Holding Corp)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, shall cooperate with the other parties and use (and shall cause its their respective Subsidiaries toto use) their respective reasonable best efforts (and in the case of AGM, use its reasonable best efforts to cause the Control Persons) (unless, with respect to any action, another standard of performance is expressly provided for herein) to as promptly as reasonably practicable (i) 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 cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner reasonably practicable, the transactions Transactions, including (A) taking all such actions contemplated by this the terms of the Statutory Merger Agreement, including: (iB) the obtaining of otherwise preparing and filing promptly all documentation to effect all necessary Permitsfilings, waiversnotices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; other documents and (iiiC) the execution executing and delivery of delivering any additional instruments necessary to consummate the Mergers Transactions, (ii) take, or cause to be taken, all actions, and do, or cause to fully carry out be done, and assist and cooperate with the purposes other parties hereto in doing, all things necessary, proper or advisable to obtain all approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions, including the Required Regulatory Approvals, (iii) take all steps that are necessary, proper or advisable to avoid any Actions by any Governmental Authorities with respect to this Agreement or the Transactions and (iv) defend or contest in good faith any Action by any third party (excluding any Governmental Authority), whether judicial or administrative, challenging this Agreement or that would otherwise prevent or materially delay the consummation of the Transactions. For the avoidance of doubt, the efforts required by this Agreement. The Section 5.04 shall not require, or be construed to require, any Specified Party, Fund or Portfolio Company and Parent shall, subject to applicable Law, promptly: agree to (A) cooperate and coordinate with sell, hold separate, divest, discontinue or limit, before or after the other Closing Date, any assets, businesses or interest in the taking any of the actions contemplated by clauses (i)their respective assets or businesses, (ii), and (iii) immediately above; and or (B) supply any conditions relating to, or changes or restriction in, the other with any 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 parties hereto, as the case may be, operations of any material communication from such assets or businesses; provided that the inclusion of a reference to any Governmental Entity regarding action in this sentence shall not imply that reasonable best efforts would require a party to take any of such action. Notwithstanding anything contained herein to the transactions contemplated by contrary, nothing in this Agreement. If Agreement shall require AGM or its Affiliates to take any action which would have a non-de minimis adverse economic impact on the Companycompensation arrangements between AGM or its Affiliates, on the one hand, and AHL or Parent, Merger Sub, or Second Merger Subits Affiliates, 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Global Management, Inc.), Merger Agreement (Athene Holding LTD)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.095.08), each of the parties 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 in doing, all things necessary, proper, 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: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , and (ii) the 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 Mergers 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: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), ) and (ii), ) immediately above and (iii) immediately above; and (By) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, conditioned 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 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 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 take such actions as are necessary or advisable to obtain prompt approval of the consummation of the transactions contemplated by this Agreement 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 instituted) by a Governmental Entity or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, Parent and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, none of Parent, Merger Sub or any of their Afiliates shall be required to defend, contest or resist any action or proceeding, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Order, in connection with the transactions contemplated by 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, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, 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 Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries; provided that, if requested by Parent, the Company 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 Company in the event the Closing occurs.
Appears in 2 contracts
Samples: Merger Agreement (Ebix Inc), Merger Agreement (Adam Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things necessary, proper, or proper and advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner as promptly as practicable, the Merger and the other transactions contemplated by this Agreement, includingincluding using reasonable best efforts to accomplish the following: (i) that the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesconditions set forth in Article VII are satisfied; (ii) the obtaining of all necessary material consents actions or waivers nonactions, waivers, consents, clearances, and approvals from Governmental Entities and non-governmental third partiesparties and the making of all necessary registrations, notices and filings (including filings with Governmental Entities); and (iii) the execution and delivery obtaining of all necessary consents, approvals or waivers from third parties. Subject to first having used all reasonable best efforts to negotiate a resolution of any additional instruments necessary objections underlying such lawsuits or other legal proceedings, the Company and Parent shall use reasonable best efforts to consummate defend and contest any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Mergers and to fully carry out consummation of the purposes of Merger or the other transactions contemplated by this Agreement. , including seeking to have any stay, temporary restraining order, or preliminary injunction entered by any Governmental Entity vacated or reversed.
(b) The Company and Parent shallshall cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.03, subject to applicable Law, promptly: by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (Aand its advisors) cooperate with any Governmental Entity and coordinate any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the other in the taking of the actions transactions contemplated by clauses this Agreement; provided, however, that material may be redacted (i), (ii)x) as necessary to comply with contractual arrangements, and (iiiy) immediately above; and (B) supply as necessary to address good faith legal privilege or confidentiality concerns. Neither party shall file any such document or take such action if the other with any information that may be party has reasonably required in order objected (and not withdrawn its objection) to effectuate the filing of such document or the taking of such actionsaction on the grounds that such filing or action would reasonably be expected to either (i) prevent, materially delay or materially impede the consummation of the Merger or the other transactions contemplated hereby, or (ii) cause a condition set forth in Article VII to not be satisfied in a timely manner. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of the other party.
(c) Each party hereto shall of the Company and Parent will promptly inform the other party or parties hereto, as the case may be, upon receipt of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, Parent (or Second Merger Sub, on the other hand, any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity with respect that is related to the transactions contemplated by this Agreement, then it shall use reasonable best efforts such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, if permitted to the extent not prohibited by applicable Law and by any applicable such Governmental Entity, provide gives the other party’s counsel with advance notice and party the opportunity to attend and participate in participate. Each party will advise the other party promptly of any meeting understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent In furtherance and not in limitation of the other (such consent not foregoing, each party will use all reasonable efforts to resolve any objections that may be unreasonably withheld, conditioned, or delayed).
(b) In asserted with respect to the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction transactions contemplated by this AgreementAgreement under any antitrust, competition or any other agreement contemplated herebytrade regulatory Laws, the Company shall cooperate in including (subject to first having used all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, decree, judgment, injunction or other Order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) Notwithstanding anything herein to the contrary (including Section 6.03), no party is required to, and the Company may not, without the prior written consent of Parent, become subject to, consent or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or Order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, Parent, Merger Sub, or any of their Affiliates in any manner which, individually or in the aggregate with all other such requirements, conditions, understandings, agreements and Orders could reasonably be expected to have a Material Adverse Effect on the combined business, financial condition or results of operations of Parent, Merger Sub and the Company and its Subsidiaries taken as a whole. Notwithstanding anything in this Agreement to the contrary, the Company will, upon the request of Parent, become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or Order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its Affiliates, so long as such requirement, condition, understanding, agreement or Order is binding on the Company only in the event that the Closing occurs. Furthermore, without the prior written consent of the Parent (determined in its sole discretion), in no event shall the Company or Parent or any of their respective Subsidiaries or Affiliates: (i) pay any consideration to, amend or enter into any agreement with, any non-governmental third party to obtain any consent to the Merger or to otherwise comply with Section 6.03(e); or (ii) agree to the imposition of limitations on the ability of Parent or any Affiliate of Parent to hold, or exercise full rights of ownership of, any shares of capital stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to the stockholders of the Surviving Corporation.
(e) The Company and the Company Board shall (i) use reasonable best efforts to ensure that no state takeover Law or similar Law is or becomes applicable to this Agreement, the Merger or any of the other transactions contemplated by this Agreement, and (ii) if any state takeover Law or similar Law becomes applicable to this Agreement, the Merger or any of the other transactions contemplated by this Agreement, use reasonable best efforts 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 and otherwise to minimize the effect of such Law on this Agreement, the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Hirsch International Corp), Merger Agreement (Hirsch International Corp)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to conditions of this Agreement, the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, Company and Parent shall cause its Subsidiaries to, use its 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 in doing, all things necessary, proper, proper or advisable under Applicable Law to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including: including (i) the obtaining of preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary Permitsfilings, waiversnotices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesother documents; (ii) the obtaining of and maintaining all necessary material consents or waivers from third parties; approvals, consents, registrations, permits, authorizations and (iii) the execution and delivery of any additional instruments necessary other confirmations required to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication obtained from any Governmental Entity regarding any of Authority or other third party that are necessary, or desirable to consummate the transactions contemplated by this Agreement. If ; (iii) to the Companyextent proper and advisable, on participating and actively defending against or otherwise pursuing any litigation that may be commenced by a Governmental Authority relating to this Agreement or the one hand, transactions contemplated hereby; (iv) in the event that the United States Federal Trade Commission (the “FTC”) or Parent, the United States Department of Justice (the “DOJ”) issues a Request for Additional Information and Documentary Material (a “Second Request”) under the HSR Act in relation to the Merger Sub, or Second Merger Sub, on and 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 taking such measures as may be reasonably necessary to makelimit the scope of such Second Request, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in certifying substantial compliance with such requestSecond Request and otherwise responding to and seeking to resolve any requests for information, anddocuments, if permitted data or testimony made by the FTC or the DOJ under the HSR Act; (v) securing clearance under all applicable Law and by Competition Laws (including the expiration or termination of any applicable Governmental Entity, provide waiting period thereunder) of the Merger and the other party’s counsel with advance notice transactions contemplated by this Agreement by the Termination Date; and (vi) preventing the entry of, and having vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order relating to any applicable Competition Law that would prevent, prohibit, restrict or delay the consummation of the Merger and the opportunity other transactions contemplated by this Agreement; provided that the parties hereto understand and agree that in no event shall the Company, Parent or Merger Subsidiary be required by this Section 8.01 or any other provision of this Agreement (A) to attend and participate in enter into any meeting settlement, undertaking, consent decree, stipulation or agreement with any Governmental Entity in respect of any filing made thereto Authority in connection with the transactions contemplated hereby or (B) to divest or otherwise hold separate (including by this Agreement. Neither establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing) in the case of either of the foregoing clauses (A) or (B) with respect to any of the material businesses, assets or properties of Parent nor or the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)material Subsidiaries.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Pepsi Bottling Group Inc), Merger Agreement (Pepsico Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth herein provided, except as otherwise provided in this Agreement Agreement, and without limiting the obligations of the parties under Section 7.5 (including those contained in this Section 5.09but subject to limitations therein), each of the parties hereto shall, and shall cause its Subsidiaries to, agrees to use its reasonable best efforts to take, take or cause to be taken, taken all actions, and to do, do or cause to be done, done and to assist and cooperate with the other parties party hereto in doing, doing all things reasonably necessary, proper, proper or advisable under applicable Laws and regulations to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including, but not limited to: (i) the obtaining satisfaction (but not the waiver) of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making conditions precedent to the obligations of all necessary registrations and filings (including filings with Governmental Entities) and any of 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 Entitiesparties hereto; (ii) the obtaining of all necessary material consents and applicable consents, waivers or waivers from approvals of any third partiesparties (including Governmental Entities); and (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the performance of the obligations hereunder; (iv) the submission of joint instructions, from time to time as necessary for the release of any monies due to any party to this Agreement from the Escrow Fund (as defined in the Escrow Agreement), (v) the execution and delivery of any additional instruments necessary such instruments, and the taking of such other actions as the other party hereto may reasonably require in order to consummate the Mergers and to fully carry out the purposes intent of this Agreement. The Company and Parent shallNotwithstanding the foregoing, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking none of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply Company or the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Holders or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries Affiliates shall be obligated to commit make any payments or otherwise pay any consideration to or agree) with any Governmental Entity third party to stay, toll, or extend obtain any applicable waiting period under any applicable Lawsconsent, without waiver or approval. Without limiting the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated herebyforegoing, the Company shall cooperate promptly take all actions reasonably requested by Parent prior to the Closing to perfect the transfer to the Company or one of its Subsidiaries of legal and beneficial title to those interests in its Subsidiaries not held by one of the Acquired Companies as set forth in Section 3.3 of the Company Disclosure Letter by the Closing and take all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts actions reasonably requested by Parent prior to contest and resist the Closing to bring any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, Subsidiary of the Company that is not in effect good standing (or its local law equivalent) or is otherwise not in compliance with local law requirements as to corporate, tax and that prohibits, prevents, or restricts consummation foreign investment registrations as set forth in Section 3.3(b) of the transactions contemplated by this AgreementCompany Disclosure Letter into good standing (or its local law equivalent) and compliance with such local law requirements.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Icg Group, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to conditions of this Agreement, the conditions set forth in this Agreement (including those contained in this Section 5.09)Company, on the one hand, and each of the parties hereto shallPartnership and the Partnership GP, on the other hand, shall cooperate with the other and use and shall cause its each of their respective Subsidiaries to, to use its reasonable best efforts to (i) take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doingall things, all things necessary, proper, 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 the Company until the Effective Time or the termination of this Agreement, voting or causing to be voted all Units beneficially owned by the Company in favor of the Merger at the Partnership Unitholder Meeting, and 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 including preparing and filing as promptly as practicable all documentation to effect all necessary Permitsfilings, waiversnotifications, notices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings other documents (including any required or recommended filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to under applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (iAntitrust Laws), (ii)) obtain promptly (and in any event no later than the Outside Date) all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication confirmations from any Governmental Entity regarding any of or third party necessary, proper or advisable to consummate the transactions contemplated by this Agreement. If Agreement and (iii) defend any Proceedings challenging this Agreement or the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of the foregoing, each Party hereto (including by their respective Subsidiaries) agrees to make an appropriate filing (if required by applicable Law) of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable and in any event within fifteen (15) Business Days after the date of this Agreement (unless a later date is mutually agreed to by the Parties hereto) and to supply as promptly as practicable any additional information and documentary material that may be requested by any Governmental Entity pursuant to the HSR Act or any other applicable Antitrust Law and use its reasonable best efforts to take, or cause to be taken (including by their respective Subsidiaries), all other actions consistent with this Section 6.02 necessary to cause the expiration or termination of any applicable waiting periods under the HSR Act as promptly as practicable (and in any event no later than the Outside Date).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Legacy Reserves Lp), Merger Agreement (Legacy Reserves Lp)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Combination Transactions and the other transactions contemplated by this Agreement, including: including using reasonable best efforts for (i) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions 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 and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver a Required Consent from, or to avoid an action or proceeding by, any Governmental Entities; Entity, (ii) the obtaining of all necessary material consents 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 seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iiiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The Company In furtherance and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other not in the taking limitation of the actions contemplated by clauses foregoing, each party hereto agrees to make (i), (ii), ) an appropriate filing of a Notification and (iii) immediately above; and (B) supply Report Form pursuant to the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity HSR Act with respect to the transactions contemplated hereby as promptly as practicable, (ii) appropriate filings, if any are required, pursuant to foreign Antitrust Laws as promptly as practicable and (iii) all other necessary filings with other Governmental Entities relating to the Combination Transactions, 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 this Agreement, then it shall such authorities and to use reasonable best efforts to make, cause the expiration or cause to be made, termination of any applicable waiting periods under the Antitrust Laws and the receipt of the Required Consents as soon as reasonably practicable and after consultation with practicable. Notwithstanding anything to the other party, an appropriate response contrary 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, neither Starwood nor Marriott shall be required pursuant to any Antitrust Laws to hold separate (including by trust or otherwise) or divest any of its businesses or assets or enter into any consent decree or other agreement contemplated herebythat 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 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 Company net present value of the 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 contract 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 cooperate in all respects take into account the reasonably expected future selling, general and administrative expenses associated with Parentsuch contract), Merger Subusing 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 any (using EBITDA for 2015 for opened hotels, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action projected EBITDA for the third full year of operations for pipeline hotels or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, hotels that is in effect and that prohibits, prevents, or restricts consummation were not open for all of the transactions contemplated by this Agreement.2015);
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Marriott International Inc /Md/), Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of, and other than as expressly contemplated by, this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shallParent Parties, on the one hand, and the Partnership and the General Partner, on the other hand, shall cooperate with the other and use and shall cause its their respective Subsidiaries to, to use its their reasonable best efforts to (i) take, or cause to be taken, all appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doingall things, all things necessary, proper, 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, directly or indirectly, over all Common Units, the General Partner Interest and the Special General Partner Interest in the Partnership beneficially owned by Parent, any of its Subsidiaries or the General Partner, as applicable, as of the date of this Agreement or acquired thereafter, and to 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 including preparing and filing as promptly as practicable all documentation to effect all necessary Permitsfilings, waiversnotifications, notices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesother documents; (ii) obtain promptly (and in any event no later than the obtaining Outside Date) all approvals, consents, waivers, clearances, expirations or terminations of all necessary material consents waiting periods, registrations, Permits, authorizations and other confirmations from any Governmental Authority or waivers from third parties; party necessary, proper or advisable to consummate the transactions contemplated by this Agreement and (iii) the execution and delivery of defend any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated Proceedings brought by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any Authority 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 by this Agreement. If .
(b) Parent and the CompanyPartnership shall (i) make or cause to be made appropriate filings of “Notification and Report Forms” pursuant to the HSR Act, on the one hand, or Parent, Merger Sub, or Second 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 as promptly as practicable, but in no event later than 20 Business Days after the date of this Agreement, then it and Parent and the Partnership shall each bear their own costs and expenses incurred in connection with such filings, provided, that Parent shall bear fifty percent (50%) of, and the Partnership shall bear fifty percent (50%) of, all filing fees required to be paid in connection with any such filings, (ii) use reasonable best efforts to makemake an appropriate response at the earliest practicable date to any requests for additional information made by the Antitrust Division of the Department of Justice (the “DOJ”) or the Federal Trade Commission (the “FTC”), and (iii) use reasonable best efforts to (x) cause the waiting periods required under the HSR Act and any other Laws to terminate or cause expire at the earliest possible date, and (y) to be maderesist in good faith, at each of their respective cost and expense, any assertion that the transactions contemplated by this Agreement constitute a violation of any applicable Antitrust Laws, so as to enable the Closing to occur as soon as reasonably practicable and after consultation possible. In connection with this Section 6.3(b), the other partyparties shall, an appropriate response in compliance with such request, and, if to the extent permitted by applicable Law and by Law, (1) cooperate in all respects with each other in connection with any applicable Governmental Entityfiling, provide submission, investigation or inquiry, (2) promptly inform the other party’s counsel with advance notice party of any communication received by such party from, or given by such party to, the DOJ or the FTC and the opportunity to attend and participate of any material communication received or given in any meeting connection with any Governmental Entity proceeding by a private party, in respect of each case, regarding the transactions contemplated by this Agreement, (3) have the right to review in advance, and to the extent practicable each shall consult the other on, any filing made thereto with, or written materials to be submitted to, the DOJ, the FTC or, in connection with any proceeding by a private party, any other person, in connection with the transactions contemplated by this Agreement. Neither Parent nor Agreement and (4) consult with each other in advance of any meeting, discussion, telephone call or conference with the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) DOJ, the FTC or, in connection with any Governmental Entity proceeding by a private party, with any other Person, and to staythe extent not expressly prohibited by the DOJ, tollthe FTC or other person, or extend any applicable waiting period under any applicable Laws, without the prior written consent of give the other (party the opportunity to attend and participate in such consent not to be unreasonably withheldmeetings and conferences, conditionedin each case, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of regarding the transactions contemplated by this Agreement.
(c) Notwithstanding anything to the contrary in this Section 6.3 or otherwise, Parent shall not be required to, and shall not be required to cause its Affiliates to (and the Partnership shall not, and shall not agree to, without Parent’s prior written consent to) sell, divest, hold separate, license, relinquish, otherwise dispose of, or agree to any limitation on its freedom of action, ownership, or control with respect to any assets, businesses, properties, or interests in or of any Person, or agree or consent to any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (HF Sinclair Corp), Merger Agreement (Holly Energy Partners Lp)
Reasonable Best Efforts. (a) Upon Sellers, on the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shallone hand, and Buyer, on the other hand, shall cause its Subsidiaries to, use its 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner reasonably practicable, the transactions contemplated by this Agreementhereby, includingincluding using reasonable best efforts to accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article IX and Article X to be satisfied, (ii) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities Authorizations and the making of all necessary registrations registrations, declarations and filings (including registrations, declarations and filings with Governmental EntitiesAuthorities, if any) 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 Proceeding by any Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and Authority, (iii) the defending of any Proceedings challenging this Agreement or the consummation of the transaction contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and (iv) the execution and or delivery of any additional instruments necessary to consummate the Mergers transactions contemplated hereby and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: .
(Ab) 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the CompanySellers, on the one hand, or Parent, Merger Sub, or Second Merger Suband Buyer, on the other hand, receives a request for additional information or documentary material (i) shall promptly inform each other of any communication from any Governmental Entity with respect to Authority concerning this Agreement, the transactions contemplated by this Agreementhereby, then it and any filing, notification or request for approval and (ii) shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with permit the other party, an appropriate to review in advance any proposed written or material oral communication or information submitted to any such Governmental Authority in response in compliance with such request, and, if permitted by applicable Law thereto and by shall discuss and attempt to reasonably account for any applicable Governmental Entity, provide comments or suggestions of the other party’s counsel with advance notice and Party (in each case excluding any portions thereof that contain confidential information). In addition, none of the opportunity Parties shall agree to attend and participate in any meeting with any Governmental Entity Authority in respect of any filing made thereto filings, investigation or other inquiry with respect to this Agreement or the transactions contemplated hereby, unless such Party consults with the other Parties in advance and, to the extent not prohibited by any such Governmental Authority, gives the other Parties the opportunity to attend and participate thereat, in each case to the maximum extent practicable. Subject to any restrictions under applicable laws, rules or regulations, Buyer, on the one hand, and Sellers, on the other hand, shall furnish the other with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and the Governmental Authority or members of its staff on the other hand, with respect to this Agreement, the transactions contemplated hereby (excluding documents and communications which are subject to preexisting confidentiality agreements or to the attorney-client privilege or work product doctrine) or any such filing, notification or request for approval (in each case excluding any portions thereof that contain confidential information). In carrying out their obligations under this Section 7.3, subject to applicable Law, each of the Parties shall not submit or otherwise provide any information to such Governmental Authority without first having provided a reasonable opportunity to the other Party and its counsel to comment upon such information. Each Party shall also furnish the other Party with such necessary information and assistance as such other Party may reasonably request in connection with their preparation of necessary filings, registration or submissions of information to the Governmental Authority in connection with this Agreement, the transactions contemplated by hereby and any such filing, notification or request for approval. Any Party may, as it deems advisable and necessary, reasonably designate any sensitive material provided to the other Party under this Agreement. Neither Parent nor the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, tollSection 7.3, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not otherwise pursuant to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, as “outside counsel only.” Such materials and the Company information contained therein shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts be given only to contest 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 the outside legal counsel of the transactions contemplated recipient and will not be disclosed by this Agreementsuch outside counsel to the directors, officers or employees of the recipient, unless express written permission is obtained in advance from the source of the materials.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Camping World Holdings, Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties 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 in doing, all things necessary, proper, 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: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the 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 Mergers 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: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, withheld or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Romulus Corp.), Merger Agreement (On-Air Impact, Inc.)
Reasonable Best Efforts. (a) Upon the terms Subject to Sections 6.3(b) and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)6.3(c) hereof, each of the parties hereto shallCompany, the Buyer and the Acquisition Sub 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 in doing, all things reasonably necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreementhereby as promptly as practicable, including: including (i) the obtaining of all necessary Permitsfrom any Governmental Authority or any other third party any consents, licenses, permits, waivers, and actions approvals, authorizations, clearances, or nonactions from Governmental Entities and orders required to be obtained or made by the making Company, the Buyer or any of all necessary registrations and filings their respective Subsidiaries (including filings the Acquisition Sub) in connection with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromauthorization, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate this Agreement and the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by hereby; and (ii) making all necessary filings, and thereafter making any other required submissions, with respect to this Agreement. If Agreement and the Merger required under (A) the Securities Act and the Exchange Act, and any other applicable federal or state securities laws, (B) the HSR Act and any related governmental request thereunder and (C) any other applicable Law; provided, however, that nothing in this Agreement shall require the Buyer and the Acquisition Sub to (and the Company shall not) become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change assets or businesses of the Company, on the one handBuyer, or Parentany of their subsidiaries.
(b) Until the Effective Time, Merger Sub, or Second Merger Sub, on each party shall promptly notify the other handparties in writing of any pending or, receives a request for additional information to the knowledge of the first party, threatened action, proceeding or documentary material from investigation by any Governmental Entity Authority or any other Person (i) challenging or seeking material damages in connection with respect to the Merger or any of the other transactions contemplated by hereby or (ii) seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated hereby or otherwise limit the right of the Surviving Corporation to own or operate any material portion of the businesses, assets or properties of the Company or any of its Subsidiaries.
(c) Each party shall consult and cooperate with each other in connection with their duties set forth in this AgreementSection 6.3. The Company, then it the Buyer and the Acquisition Sub shall use their respective commercially reasonable best efforts to make, furnish each other all information required for any application or cause other filing 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 made pursuant to 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated herebyaddition, the Company shall cooperate with Buyer in all respects making any filings or submissions in connection with, or obtaining any clearance required pursuant to, the HSR Act in connection with Parentthe Additional Transaction.
(d) Each of the Company, Merger Subthe Buyer and the Acquisition Sub shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and Second Merger Sub use, and shall use its cause their respective Subsidiaries to use, their commercially reasonable best efforts to contest and resist obtain 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 Agreementthird-party consents.
Appears in 2 contracts
Samples: Merger Agreement (I Trax Inc), Merger Agreement (Walgreen Co)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)and the Ancillary Agreements, each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable laws and regulations to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this AgreementAgreement and the Ancillary Agreements as promptly as practicable including, including: without limitation, (i) subject to Section 6.4, the obtaining preparation and filing of all necessary Permitsforms, waivers, registrations and actions or nonactions from Governmental Entities notices required to be filed to consummate the transactions contemplated by this Agreement and the making of all necessary registrations and filings (including filings with Governmental Entities) Ancillary Agreements and the taking of all steps such actions as may be are necessary to obtain an approval any requisite approvals, consents, orders, exemptions or waiver from, waivers by any third party or to avoid an action or proceeding by, any Governmental Entities; Entity and (ii) using their reasonable best efforts to cause the obtaining satisfaction of all conditions to Closing. Subject to Section 6.4, each party shall promptly consult with the other with respect to, provide any necessary material consents information with respect to, and provide copies of all filings made by such party with any Governmental Entity or waivers from third parties; any other information supplied by such party to a Governmental Entity in connection with this Agreement and (iii) the execution Ancillary Agreements and delivery the transactions contemplated hereby and thereby. Subject to Section 6.4, TRW and Buyer shall, and shall cause their respective Affiliates to, with respect to a threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of any additional instruments necessary party to this Agreement or an Ancillary Agreement to consummate the Mergers and transactions contemplated hereby or thereby, use their respective reasonable best efforts to fully carry out prevent the purposes of this Agreement. The Company and Parent shallentry, subject to applicable Lawenactment or promulgation thereof, promptly: (A) cooperate and coordinate with as the other in the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that case may be reasonably required in order (including by pursuing any available appeal process).
(b) Subject to effectuate the taking of such actions. Each Section 6.4, each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, provide the other party’s counsel with advance notice Agreement 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 AgreementAncillary Agreements. Neither Parent nor the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.Subject to
Appears in 2 contracts
Samples: Master Agreement of Purchase and Sale (TRW Inc), Master Agreement of Purchase and Sale (Goodrich Corp)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to conditions of this Agreement, the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, Company and Parent shall cause its Subsidiaries to, use its 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 in doing, all things necessary, proper, proper or advisable under Applicable Law to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including: including (i1) the obtaining of preparing and filing as promptly as practicable with any Governmental Authority or other Third Party all documentation to effect all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; Filings and (iii2) the execution obtaining and delivery of any additional instruments necessary maintaining all licenses, authorizations, permits, consents, approvals, clearances, variances, exemptions and other confirmations required to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication obtained from any Governmental Entity regarding any of Authority or other Third Party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement. If Agreement (which shall include using its reasonable best efforts to contest any (i) action, suit, investigation or proceeding brought by any Governmental Authority in a federal, state or administrative court challenging, seeking to enjoin, restrain, prevent, prohibit or make illegal the CompanyOffer, on the one handacceptance 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 Parentseeking damages or to impose any terms or conditions in connection with the Offer, the Merger Subor 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 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 Second Merger Subtaking, on causing to be taken or refraining from taking any other action (or otherwise agreeing to do any of the other hand, receives a request for additional information or documentary material from any Governmental Entity 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 Subsidiaries and Parent and its Subsidiaries, taken as a whole; provided that, for such purposes, (1) impacts on the synergies expected to be realized from the Offer and the Merger will be taken into account and (2) impacts on Parent, 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 preceding sentence (any such action, a “Burdensome Condition”) without the prior written consent of Parent and (y) if so requested by this AgreementParent, then it shall use reasonable best efforts to maketake any Burdensome Condition provided that such Burdensome Condition is conditioned on the consummation of the Offer and does not reduce the Offer Price or the Merger Consideration. Parent and Merger Subsidiary shall not take any action or agree to take any action (including by acquiring or agreeing to acquire by merging or consolidating with, or cause to be madeby purchasing a substantial portion of the assets of or equity in, 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 or by any applicable Governmental Entityother manner, provide any business of any Third Party) which is reasonably likely to prevent the other party’s counsel with advance notice and the opportunity to attend and participate in obtaining of, any meeting with authorization, consent, order, declaration or approval of 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, tollAuthority, or extend any expiration or termination of the applicable waiting period under under, any applicable LawsCompetition Law by the End Date or delay such obtaining, without expiration or termination to a date after the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)End Date.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (NPS Pharmaceuticals Inc), Merger Agreement (Shire Pharmaceutical Holdings Ireland Ltd.)
Reasonable Best Efforts. (a) Upon Subject to the terms and conditions of this Agreement, each of Parent and the Company shall, and shall cause their respective Subsidiaries to use reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such Party or its Subsidiaries with respect to the Mergers and, subject to the conditions set forth in Article VI hereof, to consummate the transactions contemplated by this Agreement Agreement, including the Mergers, as promptly as practicable and (including those contained ii) to obtain (and to cooperate with the other Party to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third Person which is required to be obtained by Parent or the Company or any of their respective Subsidiaries in connection with the Mergers and the transactions contemplated by this Agreement, and to comply with the terms and conditions of any such consent, authorization, order or approval. To the extent necessary in order to accomplish the foregoing and subject to the limitations set forth in Section 5.095.8(e), Parent and the Company shall use their respective reasonable best efforts to jointly propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation by Parent and the Company or any of their respective Subsidiaries of, any portion of the business, properties or assets of Parent, the Company or any of their respective Subsidiaries; provided, however, that neither Parent nor the Company shall be required to propose, commit to or effect any action (x) that is not conditioned upon the consummation of the Merger or (y) that, individually or in the aggregate, would have, or would reasonably be expected to have (after giving effect to any reasonably expected proceeds of any divestiture or sale of assets) a material and adverse effect on the business of Parent, the Company and their respective Subsidiaries, taken as a whole (individually or in the aggregate, a “Burdensome Condition”).
(b) Subject to the terms and conditions of this Agreement, each of Parent and the parties hereto shall, and Company 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, as soon as practicable after the date of this Agreement, the transactions contemplated hereby, including using reasonable best efforts to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby and using reasonable best efforts to defend any litigation seeking to enjoin, prevent or delay the consummation of the transactions contemplated hereby or seeking material damages.
(c) In furtherance and not in limitation of the foregoing, (i) each Party hereto shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within ten Business Days of the date hereof, unless otherwise agreed to by the Parties, and to satisfy supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use its reasonable best efforts to take, or cause to be taken, all conditions to, in other actions consistent with this Section 5.8 necessary to cause the most expeditious manner practicable, expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable and (ii) each of the Parent and the Company shall each use its reasonable best efforts to (x) take all action reasonably necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the transactions contemplated by this Agreement and (y) if any state takeover statute or similar Law becomes applicable to any of the transactions contemplated by this Agreement, including: take all action reasonable to enable the transactions contemplated by this Agreement to be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the transactions contemplated by this Agreement.
(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 Entity in connection with the obtaining of all necessary Permitstransactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity relating to the transactions contemplated by this Agreement, waiversincluding any governmental inquiry, investigation or proceeding initiated by a private party, and actions or nonactions from Governmental Entities (ii) keep the other Party informed in all material respects and the making on a reasonably timely basis of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver any communication received by such Party from, or to avoid an action given by such Party to, the FTC, the Antitrust Division of the Department of Justice or proceeding by, any other Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; Entity and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other communication received or given by a private Person in the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other connection with any information that may be reasonably required governmental inquiry, investigation or proceeding, in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the each case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If Notwithstanding anything to the Companycontrary contained in this Agreement, on Parent shall have the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from right to direct all matters with any Governmental Entity consistent with respect to its obligations hereunder. In addition, Parent shall have the transactions contemplated by this Agreement, then it principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances and shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable take the lead in all meetings 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, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting communications with any Governmental Entity in respect connection with obtaining any necessary antitrust or competition clearances. In furtherance and not in limitation of any filing made thereto this Section 5.8(d), subject to applicable Laws relating to the exchange of information, each Party shall consult and cooperate with the other Party in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any such request, inquiry, investigation, action or other legal proceeding. In addition, except as may be prohibited by any Governmental Entity or by Law, in connection with any such request, inquiry, investigation, action or other legal proceeding, each Party hereto shall permit authorized Representatives of the transactions contemplated by this Agreementother Party (x) to participate at or in each substantive meeting, conference or telephone call with a representative of a Governmental Entity relating to such request, inquiry, investigation, action or other legal proceeding and (y) to have reasonable access to and be consulted in connection with any material document, opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or other legal proceeding. Neither Parent nor and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.8(d) as “outside counsel only.” Such materials and the information contained therein shall commit be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. Notwithstanding anything to the contrary in this Section 5.8(d), materials provided to the other Party or its outside counsel may be redacted to remove references concerning the valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of Parent, the Company and their respective Subsidiaries.
(e) Notwithstanding Section 5.8(a), 5.8(b), 5.8(c) and 5.8(d) or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries be required to agree (to, nor shall the Company take or permit any of their respective Subsidiaries Company Subsidiary to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other take (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, unless in each case Parent directs the Company shall cooperate to do so), any action that would result in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreementa Burdensome Condition.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to conditions of this Agreement, the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, Company and Parent shall cause its Subsidiaries to, use its 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 in doing, all things necessary, proper, proper or advisable under Applicable Law to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including: including (i) the obtaining of preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary Permitsfilings, waiversnotices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesother documents; (ii) the obtaining of and maintaining all necessary material consents or waivers from third parties; approvals, consents, registrations, permits, authorizations and (iii) the execution and delivery of any additional instruments necessary other confirmations required to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication obtained from any Governmental Entity regarding any of Authority or other third party that are necessary, or desirable to consummate the transactions contemplated by this Agreement. If ; (iii) to the Companyextent proper and advisable, on participating and actively defending against or otherwise pursuing any litigation that may be commenced by a Governmental Authority relating to this Agreement or the one hand, transactions contemplated hereby; (iv) in the event that the United States Federal Trade Commission (the “FTC”) or Parent, the United States Department of Justice (the “DOJ”) issues a Request for Additional Information and Documentary Material (a “Second Request”) under the HSR Act in relation to the Merger Sub, or Second Merger Sub, on and 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 taking such measures as may be reasonably necessary to makelimit the scope of such Second Request, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in certifying substantial compliance with such requestSecond Request and otherwise responding to and seeking to resolve any requests for information, anddocuments, if permitted data or testimony made by the FTC or the DOJ under the HSR Act; (v) securing clearance under all applicable Law and by Competition Laws (including the expiration or termination of any applicable Governmental Entity, provide waiting period thereunder) of the Merger and the other party’s counsel with advance notice transactions contemplated by this Agreement by the Termination Date; and (vi) preventing the entry of, and having vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order relating to any applicable Competition Law that would prevent, prohibit, restrict or delay the consummation of the Merger and the opportunity other transactions contemplated by this Agreement: provided that the parties hereto understand and agree that in no event shall the Company, Parent or Merger Subsidiary be required by this Section 8.01 or any other provision of this Agreement (A) to attend and participate in enter into any meeting settlement, undertaking, consent decree, stipulation or agreement with any Governmental Entity in respect of any filing made thereto Authority in connection with the transactions contemplated hereby or (B) to divest or otherwise hold separate (including by this Agreement. Neither establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing) in the case of either of the foregoing clauses (A) or (B) with respect to any of the material businesses, assets or properties of Parent nor or the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)material Subsidiaries.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pepsiamericas Inc/Il/), Merger Agreement (Pepsico Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto Company and each Investor shall, and shall cause its Subsidiaries Affiliates 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, proper or advisable to ensure that the conditions set forth in Article VI are satisfied, to consummate and make effectivethe Transactions as promptly as practicable and, and at the sole discretion of the Apollo Investors, to satisfy all conditions toobtain the HSR Clearance with respect to the Apollo Investors and, in at the most expeditious manner sole discretion of the HPS Investors, to obtain the HSR Clearance with respect to the HPS Investors, as promptly as practicable, the transactions contemplated by this Agreementincluding, including: subject to Section 5.05(d) and Section 5.04(b), using reasonable best efforts to contest (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromany Action brought, or threatened to avoid an action or proceeding bybe brought, by any Governmental Entities; Entity seeking to enjoin, restrain, prevent, prohibit or make illegal the consummation of any of the Transactions or, at the sole discretion of the Apollo Investors or the HPS Investors, as applicable, the obtainment of any of the Specified Rights or to impose any terms or conditions in connection with the Transactions or, at the sole discretion of the Apollo Investors or the HPS Investors, as applicable, the obtainment of any of the Specified Rights and (ii) any Judgment that enjoins, restrains, prevents, prohibits or makes illegal the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution and delivery consummation of any additional instruments necessary to consummate of the Mergers and to fully carry out Transactions or, at the purposes sole discretion of this Agreement. The Company and Parent shallthe Apollo Investors or the HPS Investors, subject to applicable Lawas applicable, promptly: (A) cooperate and coordinate the obtainment of any of the Specified Rights or imposes any terms or conditions in connection with the other in Transactions or, at the taking sole discretion of the actions contemplated by clauses (i)Apollo Investors or the HPS Investors, (ii)as applicable, and (iii) immediately above; and (B) supply the other with obtainment of any information that may be reasonably required in order to effectuate of the taking of such actionsSpecified Rights. Each party hereto shall promptly inform execute and deliver after the Closing such further certificates, agreements and other documents and take such other actions as the other party or parties heretomay reasonably request to consummate or implement the Transactions, to implement the Specified Rights (at the sole discretion of the Apollo Investors or the HPS Investors, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, applicable) or Parent, Merger Sub, to evidence such events or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)matters.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Investment Agreement (Albertsons Companies, Inc.), Investment Agreement (Albertsons Companies, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and conditions of this Agreement, each of Parent and the Company shall, and shall cause their respective Subsidiaries to use reasonable best efforts to: (i) take, or cause to be taken, all actions necessary, proper or advisable to comply with all legal requirements which may be imposed on such Party or its Subsidiaries with respect to the Mergers and, subject to the conditions set forth in Article VI hereof, to consummate the transactions contemplated by this Agreement, including the Mergers; (ii) defend any litigation seeking to enjoin, prevent or delay the consummation of the transactions contemplated hereby or seeking material damages; and (iii) obtain (and to cooperate with the other Party to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity, including the FTC, the Antitrust Division of the Department of Justice or any other Governmental Entity, including those federal and state departments of health, state insurance departments and other Governmental Entities with jurisdiction under applicable Health Care Laws or insurance laws, and any other third Person that is required to be obtained by Parent or the Company or any of their respective Subsidiaries in connection with the Mergers and the other transactions contemplated by this Agreement, and to comply with the terms and conditions of any such consent, authorization, order or approval; provided, however, that neither Parent nor the Company, in each case, on behalf of itself or any of its Subsidiaries, shall be required to propose, commit to, agree to or effect any action (or refrain from taking any action) or be subject to any term, limitation, condition, restriction or requirement that, individually or in the aggregate, (A) would have or would reasonably be expected to have a material and adverse effect on the financial condition, business, revenue or EBITDA of Parent and its Subsidiaries or of the Company and the Company Subsidiaries, in each case, as currently conducted, (B) would or would reasonably be expected to restrict or prohibit any lines or types of business in which Parent and its Subsidiaries or the Company and its Subsidiaries shall be permitted to engage and would have or would reasonably be expected to have a material and adverse effect on Parent and its Subsidiaries, taken as a whole, or on the Company and the Company Subsidiaries, taken as a whole; provided that, for purposes of determining whether any action, term, limitation, condition, restriction or requirement would have or would reasonably be expected to, in the case of clause (A), have a material adverse effect on Parent and its Subsidiaries, or, in the case of clause (B), restrict or prohibit any lines or types of business in which Parent and its Subsidiaries shall be permitted to engage and would have or would reasonably be expected to have a material and adverse effect on Parent and its Subsidiaries, taken as a whole, Parent and its Subsidiaries will, in each case, collectively be deemed to be a company the size of (and with revenue and EBITDA equal to those of) the Company and its Subsidiaries, taken as a whole, or (C) would or would be reasonably expected to materially impair the benefits reasonably expected to be derived by Parent from the Mergers and the other transactions contemplated hereby; provided, that, for purposes of this clause (C), such reasonably expected benefits shall be deemed to be the size of the Company and the Company Subsidiaries, taken as a whole (each of (A), (B) and (C), individually or in the aggregate, a “Burdensome Condition”).
(b) In furtherance and not in limitation of the foregoing, each Party hereto shall make all Filings with all Governmental Entities that may be or may become reasonably necessary, proper or advisable under this Agreement and applicable Law to consummate and make effective the Mergers and the other transactions contemplated hereby, including (i) not later than forty-five (45) calendar days following the date of this Agreement, Parent filing, or causing to be filed, “Form A Statements” or similar change of control applications, with the insurance commissioners or departments of health or other Governmental Entities in each jurisdiction where required by applicable Law seeking approval of Parent’s acquisition of control of each of the applicable Company Regulated Subsidiaries which results from the Mergers; (ii) not later than forty-five (45) calendar days following the date of this Agreement, Parent filing, or causing to be filed, any pre-acquisition notifications on “Form E” or similar market share notifications to be filed in each jurisdiction where required by applicable Laws with respect to the Mergers and the other transactions contemplated hereby; (iii) not later than ten (10) Business Days following the date of this Agreement (including those contained in this Section 5.09unless the Parties otherwise agree to another time period), the Company and Parent each making an appropriate Filing of a notification and report form pursuant to the HSR Act with the Federal Trade Commission and the Antitrust Division of the parties hereto shallUnited States Department of Justice with respect to the Mergers and the other transactions contemplated hereby; (iv) the Company and Parent each making any other Filing that may be required under any other applicable Laws relating to antitrust or by any Governmental Entity having antitrust jurisdiction under applicable Law; (v) not later than sixty (60) days prior to the Closing, the Company and Parent filing any required notices to CMS, with a separate notice to the CMS Central and/or Regional Office Medicare Advantage and/or Part D plan manager if applicable; and (vi) the Company and Parent each promptly and in compliance with the timeframe prescribed by applicable Laws making any other Filing that may be required under any applicable Laws or by any Governmental Entity with jurisdiction over enforcement of any such applicable Law. The Parties shall cause its Subsidiaries to, supply as promptly as practicable any additional information and documentary material that may be requested pursuant to any of the foregoing Filings and use its reasonable best efforts to take, or cause to be taken, all actionsother actions consistent with this Section 5.8 necessary to cause the expiration or termination of any applicable waiting periods, including under the HSR Act (including any extensions thereof), as soon as practicable. Subject to the terms and conditions of this Agreement, each of Parent and the Company shall use its reasonable best efforts to do, (x) take all action reasonably necessary to ensure that no state corporate takeover statute or cause similar Law is or becomes applicable to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, any of the transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; Agreement and (iiiy) the execution and delivery of if any additional instruments necessary state corporate takeover statute or similar Law becomes applicable to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If , take all reasonable action to enable the Company, Mergers and the other transactions contemplated by this Agreement to be consummated as promptly as practicable on the one hand, or Parent, Merger Sub, or Second Merger Sub, terms contemplated by this Agreement and otherwise minimize the effect of such Law 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(bc) In Each of the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and Parties hereto shall use its reasonable best efforts to contest (i) cooperate with each other in connection with any Filing with a Governmental Entity or with respect to any Filings made pursuant to Section 5.8(b), including pursuant to any Health Care Laws, insurance Laws or other applicable Laws in connection with the Mergers and resist the other transactions contemplated by this Agreement and in connection with any such action Filing with or proceeding any response to questions from a Governmental Entity with respect thereto or investigation or other inquiry by or before a Governmental Entity relating to the Mergers 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 other transactions contemplated by this Agreement, including any governmental inquiry, investigation or 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 communication received by such Party from, or given by such Party to, any Governmental Entity in connection therewith, including the FTC, the Antitrust Division of the Department of Justice or any other Governmental Entity, including those federal and state departments of health, state insurance departments and other Governmental Entities with jurisdiction under applicable Health Care Laws or insurance laws, and of any communication received or given by a private Person in connection with any governmental inquiry, investigation or proceeding, in each case regarding any of the Mergers or the other transactions contemplated by this Agreement. In furtherance and not in limitation of this Section 5.8(c), subject to applicable Laws relating to the exchange of information, each Party shall consult and cooperate with the other Party in connection with any Filing, analysis, appearance, presentation, memorandum, brief, argument, responses to questions from a Governmental Entity, opinion or proposal made or submitted in connection with any such Filing, request, inquiry, investigation, responses to questions from a Governmental Entity, action or other legal proceeding relating to the Mergers and the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by Law, in connection with any such request, inquiry, investigation, action or other legal proceeding, each Party hereto shall permit authorized Representatives of the other Party to (x) to participate at or in each substantive meeting, conference or telephone call with a representative of a Governmental Entity relating to such Filing request, inquiry, investigation, response, action or other legal proceeding, (y) have reasonable access to and be consulted in connection with any material document, opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or other legal proceeding and (z) review prior to filing or submission any Filings, pleadings and responses to inquiries from Governmental Entities submitted as required by Section 5.8(b). Each of Parent and the Company shall reasonably cooperate with each other for devising and implementing the strategy for obtaining any necessary clearances or approvals of any Governmental Entity, including the FTC, the Antitrust Division of the Department of Justice or any other Governmental Entity, including those federal and state departments of health, state insurance departments and other Governmental Entities with jurisdiction under applicable Health Care Laws or insurance laws; provided, that, in the event of a disagreement between the Parties with respect to such strategy, Parent shall have the right to direct such matters with any Governmental Entity consistent with its obligations hereunder, subject to compliance with those strategies that have been agreed between the Parties.
(d) Notwithstanding Sections 5.8(a), 5.8(b) or 5.8(c) or any other provision of this Agreement to the contrary, in no event shall Parent or its Subsidiaries be required to agree to, nor shall the Company take or permit any Company Subsidiary to take (unless in each case Parent directs the Company to do so; provided, that, any action or agreement of the Company shall be conditioned upon consummation of the Merger), any action that would result in a Burdensome Condition.
Appears in 2 contracts
Samples: Merger Agreement (Centene Corp), Merger Agreement (Health Net Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each Each of the parties hereto shallCompany, Parent and Merger Sub shall use its reasonable best efforts to, and shall cause its Subsidiaries to, use its reasonable best efforts to cause each of the Company Representatives (in the case of the Company) and each of the Parent Representatives (in the case of Parent and Merger Sub) to, (i) 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 Parties in doing, all things necessary, proper, proper or advisable under applicable Law or otherwise to consummate and make effectiveeffective the Offer, the Merger and each of the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement, (ii) take, or cause to be taken, all actions consistent with this Section 5.5(a) necessary to cause the expiration or termination of the applicable waiting period under the HSR Act (including any extensions thereof) as soon as practicable after the date of this Agreement, (iii) cause each of the conditions to the Offer set forth in Annex I and each of the conditions to the Merger set forth in Section 6.1 to be satisfied as promptly as practicable after the date of this Agreement, (iv) obtain, as promptly as practicable after the date of this Agreement, from any Governmental Entities, and maintain, any consents, licenses, permits, waivers, approvals, authorizations or orders required to satisfy all conditions tobe obtained by Parent or the Company or any of their respective Subsidiaries, or to avoid or resolve any action or proceeding by any Governmental Entity (including those in connection with the HSR Act or any other antitrust or competition Law), in connection with the most expeditious manner practicableauthorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Offer and the Merger, (v) as promptly as practicable (and in any event within ten Business Days, unless otherwise agreed by the Parties) after the date of this Agreement, make all necessary filings with respect to this Agreement, the Offer and the Merger as required under the HSR Act, and (vi) as promptly as practicable after the date of this Agreement, make all necessary filings (and thereafter make any other required submissions and supply any additional information and documentary material that may be requested by any Governmental Entity), and pay any fees due in connection therewith, with respect to this Agreement, the Offer and the Merger required under (A) the Exchange Act, and any other applicable federal or state securities Laws, and (B) any other applicable Law, including any other antitrust or competition Law; provided, that each of the Company, Parent and Merger Sub shall cooperate with the other Parties in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9 and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer, the Merger or any of the other transactions contemplated by this Agreement and (z) seeking any such actions, consents, approvals or waivers or making any such filings. The Company, Parent and Merger Sub shall promptly furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement.
(b) At Parent’s request, including: the Company shall give (ior shall cause the Company Subsidiaries to give) the obtaining of all necessary Permits, waiversany notices to third parties, and actions or nonactions from Governmental Entities use, and cause the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary Company Subsidiaries to use, their reasonable best efforts to obtain an approval or waiver fromany third party consents, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents approvals or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary required to consummate the Mergers and to fully carry out the purposes of this Agreement. The be obtained under Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate Material Contracts or other Contracts in connection with the other in the taking consummation of the actions contemplated by clauses (i)Offer, (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Merger or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the other transactions contemplated by this Agreement. If The Company shall coordinate and cooperate with Parent in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the CompanyOffer, the Merger or any of the other transactions contemplated by this Agreement and seeking any such actions, consents, approvals or waivers. Notwithstanding the foregoing, neither the Company nor any Company Subsidiaries shall pay any consideration or make any agreements or commitments in connection with any such consents, approvals or waivers without the prior written consent of Parent.
(c) Parent shall, on behalf of the one handParties, control and lead all communications with any Governmental Entity relating to antitrust or other competition Laws, and determine and direct the strategy and process by which the Parties will seek required approvals relating to antitrust and other competition Laws, subject to good faith consultations with the Company and its compliance with this Section 5.5. In furtherance and not in limitation of the foregoing, Parent shall consult with the Company and consider in good faith the views of the Company prior to proposing, negotiating, or entering into any agreement, undertaking or understanding (whether oral or written) with any Governmental Entity relating to any antitrust or other competition Laws, provided that the final determination as to the appropriate course of action shall be made by Parent. In the event that the Parties do not agree with respect to any matter in connection with seeking required approvals relating to antitrust or other competition Laws, Merger Subsubject to and without limiting in any respect the Parties’ obligations in this Section 5.5, or Second Merger SubParent’s decision will control.
(d) In furtherance and not in limitation of the foregoing, on each Party shall: (i) give the other handParties prompt notice of the making or commencement of any request, receives a request for additional information inquiry, investigation, action or documentary material from legal proceeding by or before any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, then it shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with (ii) keep the other party, an appropriate response in compliance with Parties informed as to the status of any such request, andinquiry, if permitted by applicable Law investigation, action or legal proceeding and by any applicable Governmental Entity, provide (iii) promptly inform the other party’s counsel with advance notice and Parties of any communication to or from the opportunity to attend and participate in Federal Trade Commission, the Department of Justice or any meeting with any other Governmental Entity in respect regarding the Offer, the Merger or any of any filing made thereto in connection with the other transactions contemplated by this Agreement. Neither Each Party will consult and cooperate with the other Parties and will consider in good faith the views of the other Parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each Party will permit authorized representatives of the other Parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(e) In furtherance and not in limitation of the foregoing, and notwithstanding anything to the contrary set forth in this Agreement, Parent nor shall, and shall cause each of its Subsidiaries to, take any and all steps necessary to avoid and eliminate each and every impediment under any antitrust or competition Law that may be asserted by any Governmental Entity or any other Person so as to enable the Company shall commit Parties to consummate the Offer, the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date of this Agreement (but in any event not later than the Outside Date), including proposing, negotiating, effecting and agreeing to, by consent decree, hold separate order or agree (otherwise, any sale, divestiture, license, holding separate or permit other similar arrangement with respect to, or other disposition of or restriction on, any or all of Parent’s or the Company’s respective businesses, product lines, divisions or assets or interests therein, and taking such action or actions that would in the aggregate have a similar effect, including agreeing to change or modify, and changing or modifying, any course of conduct regarding their respective future operations or otherwise taking actions that would limit their respective freedom of action with respect to, or ability to retain, one or more of their respective Subsidiaries businesses, product lines, divisions or assets or interests therein. Parent shall take any and all actions necessary in order to commit ensure that (x) no requirement for non-action, a waiver, consent or approval of the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, any State Attorney General or other Governmental Entity, (y) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, and (z) no other matter relating to any antitrust or agree) with competition Law, would preclude satisfaction of the Offer conditions by the Outside Date. The Company shall agree if, but solely if, requested by Parent so as to permit the expiration or termination of the applicable waiting periods under the HSR Act or the receipt of any Governmental Entity to stay, toll, other approval or extend the expiration or termination of any applicable waiting period under any other antitrust or competition Law, in each case as soon as practicable after the date of this Agreement (but in any event not later than necessary to satisfy the HSR Condition in Annex I at least three Business Days prior to the Expiration Date), to effect and agree to any sale, divestiture, license, holding separate or other similar arrangement with respect to, or other disposition of or restriction on, any of its businesses, product lines, divisions or assets or interests therein, and take such action or actions that would in the aggregate have a similar effect; provided, however, that any such sale, divestiture, license, holding separate or other similar arrangement, disposition, restriction or action or actions is conditioned on the occurrence of, and shall become effective only from and after, the Effective Time.
(f) Parent shall not, and it shall cause its Subsidiaries not to, directly or indirectly, acquire, purchase, lease or license (or agree to acquire, purchase, lease or license), by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, if doing so would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval or exemption of any Governmental Entity necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement or the expiration or termination of any applicable Lawswaiting period under applicable Law; (ii) materially increase the risk of any Governmental Entity entering any judgment, without decree, injunction or other order prohibiting the prior written consent Offer, the Merger or any of the other transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to remove any such consent not to be unreasonably withheldjudgment, conditioneddecree, injunction or delayed)other order on appeal or otherwise; or (iv) restrict, prevent, prohibit, impede or delay the consummation of the Offer, the Merger or any of the other transactions contemplated by this Agreement.
(bg) In furtherance and not in limitation of the foregoing, in the event that any litigation or other administrative or judicial action or proceeding is instituted (commenced, threatened or threatened is reasonably foreseeable that seeks, or would reasonably be expected to be instituted) by a Governmental Entity seek, to restrict, prevent, prohibit, impede or private party challenging delay the Mergers consummation of the Offer, the Merger or any of the other transaction transactions contemplated by this Agreement, or any other agreement contemplated hereby, each of Parent and the Company shall cooperate in all respects with Parent, Merger Subshall, and Second Merger Sub and shall cause each of their respective Subsidiaries to, use its reasonable best efforts to take all actions, and do all things necessary, proper or advisable, and cooperate with each other, to contest and resist any such litigation, action or proceeding proceeding, including through litigation on the merits and to appeal, and to, as applicable, avoid the entry of, or have vacated, lifted, reversedreversed or overturned, any decree, judgment, injunction or overturned any Orderother order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibitsrestricts, prevents, prohibits, impedes or restricts would have the effect of delaying the consummation of the Offer, the Merger or any of the other transactions contemplated by this Agreement, in any case as promptly as practicable and in any event no later than necessary to satisfy the HSR Condition in Annex I at least three Business Days prior to the Outside Date. In furtherance and not in limitation of the foregoing, in the event that any such litigation, action or proceeding is commenced against Parent or the Company (or any of their respective directors or Subsidiaries), or any such litigation, action or proceeding is, to the knowledge of Parent or the Company, as the case may be, threatened or reasonably foreseeable, Parent or the Company, as the case may be, shall promptly inform the other Party thereof in writing and shall provide the other Party with such updates and such information as the other Party shall reasonably request with respect to such litigation, action or proceeding, and the status thereof, provided, however, that neither Parent nor the Company shall be required to disclose any information if such disclosure would, in the opinion of its outside counsel, jeopardize any attorney-client or other legal privilege; provided further that the Parties shall use reasonable best efforts to enable such information to be furnished or made available to the other Party without jeopardizing privilege, including by entering into a customary joint defense agreement or common interest agreement.
(h) In furtherance and not in limitation of the foregoing, each of Parent, Merger Sub and the Company shall provide such information and execute such further instruments and written assurances as may be reasonably requested by the other Parties and assist and cooperate with the other Parties, in each case in accordance with the provisions of this Agreement, in order to carry into effect the intents and purposes of, and to consummate the transactions contemplated by, this Agreement as promptly as practicable after the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Valeant Pharmaceuticals International, Inc.), Merger Agreement (Salix Pharmaceuticals LTD)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.096.09), each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Offer, the Top-Up Option (if applicable), the Merger and the transactions contemplated by this Agreementhereby, including: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the 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 Mergers Offer, the Top-Up Option (if applicable), the Merger and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, withheld or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 6.09(b) hereof, the parties hereto shall (i) provide or cause to be provided as promptly as reasonably practicable to Governmental Entities with jurisdiction over applicable Antitrust Laws, if any (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 consents and filings under any applicable Antitrust Laws as promptly as practicable following 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 applicable Antitrust Laws, it being understood and agreed that the Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall each be responsible for fifty percent (50%) of any filing fees or similar fees required under any applicable Antitrust Laws and (ii) subject to the terms set forth in Section 6.09(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 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 instituted) by a Governmental Entity or private party challenging the Mergers Offer, the Top-Up Option (if applicable), the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company Company, Parent and Merger Sub shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its their reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the provisions of this Section 6.09, Parent and Merger Sub and any of their Subsidiaries shall be required to use their commercially reasonable best efforts to take any and all actions necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals, and waivers required under any applicable Antitrust Laws that may be required by any Governmental Antitrust Authority, so as to enable the Parties to close the transactions contemplated by this Agreement as promptly as possible.
(e) 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, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, 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 Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries; provided that, if requested by Parent in writing, the Company 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 Company in the event the Closing occurs.
Appears in 2 contracts
Samples: Merger Agreement (MGC DIAGNOSTICS Corp), Merger Agreement (MGC Parent LLC)
Reasonable Best Efforts. (a) Upon Subject to the terms hereof, including Section 6.1, Section 6.4(b), Section 6.4(c) and subject to the conditions set forth in this Agreement (including those contained in this Section 5.096.4(d), each of the parties party hereto shall, and shall cause its Subsidiaries to, each use its reasonable best efforts to to:
(i) 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 effectiveeffective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained by such party (or any of its Subsidiaries) from any Governmental Entity or third party in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby; provided, however, that in no event shall the Parent, the Purchaser, the Company or any of their respective Subsidiaries be required to satisfy all conditions topay any monies (except for filings or similar fees) or (except, in the most expeditious manner case of the Parent or the Purchaser, as contemplated by, and subject to, Section 6.4(d)) agree to any material undertaking in connection with any of the foregoing;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement, the Offer and the Merger required under (A) the Exchange Act, and any other applicable federal or state securities laws, (B) the HSR Act, any other applicable Antitrust Laws and any related governmental request thereunder and (C) any other applicable law;
(iv) contest and resist any action, including any 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) (a “Restrictive Order”) which has the effect of prohibiting consummation of the Offer or making the Merger illegal or otherwise prohibiting consummation of the Offer, the Merger or the other transactions contemplated by this Agreement, including: ; and
(iv) the obtaining of all necessary Permits, waivers, and actions execute or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution and delivery of deliver any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) parties hereto shall cooperate and coordinate with each other in connection with the other in the taking making of the actions all such filings and submissions contemplated by the foregoing clauses (iii) or (iii), (ii)including providing copies of all such documents to the non-filing Person and its advisors prior to filing and, and (iii) immediately above; and (B) supply the other with any information that may be reasonably required if requested, accepting reasonable additions, deletions or changes suggested in order to effectuate the taking of such actionsconnection therewith. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 its reasonable best efforts to make, furnish to each other all information required for any application or cause other filing 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 made pursuant to 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 law in connection with the transactions contemplated by this Agreement. Neither Notwithstanding the foregoing, each party may, as each determines is reasonably necessary, designate competitively sensitive material provided to the other pursuant to this Section 6.4 as “Outside Counsel Only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to directors, officers or employees of the recipient unless express permission is obtained in advance from the source of the materials (Parent nor or Company, as the case may be) or its legal counsel. For the avoidance of doubt, nothing contained in this Section 6.4(a) shall limit any obligation under any other provision in this Section 6.4.
(b) Without limiting the generality of anything contained in this Section 6.4, each of the Parent and the Company shall as soon as reasonably practicable and in any event within ten (10) Business Days following the date of this Agreement, if required, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act (including seeking early termination of the waiting period under the HSR Act) with respect to the transactions contemplated by this Agreement. None of the Parent, the Purchaser or the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under the HSR Act or other applicable Antitrust Laws or enter into a timing agreement with any applicable LawsGovernmental Entity, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)parties.
(bc) In Subject to the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging terms hereof, and without limiting the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated herebyParent’s obligations under Section 6.4(d), the Company shall cooperate in all respects with Parent, Merger Subparties hereto shall, and Second Merger Sub shall cause each of their respective Subsidiaries to, cooperate and shall use its their respective reasonable best efforts to obtain any government clearances or approvals required for the Closing under any Antitrust Law, to respond to any government requests for information under any Antitrust Law, to cause any waiting periods under any applicable Antitrust Laws to expire or be terminated, and to contest and resist any such action action, including any legislative, administrative or proceeding judicial action, and to have vacated, lifted, reversed, reversed or overturned any Restrictive Order. The parties hereto shall consult and cooperate with one another, whether temporaryand consider in good faith the views of one another, preliminaryin connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or permanent, that is submitted by or on behalf of any party hereto in effect and that prohibits, prevents, connection with proceedings under or restricts consummation of relating to any Antitrust Law. To the extent permitted by law or Governmental Entities reviewing the transactions contemplated by this Agreement, the parties will provide each other the opportunity to participate in meetings and other substantive conversations with any such Governmental Entities.
(d) Notwithstanding anything to the contrary in this Agreement, the Parent shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of the Parent or, effective as of the Effective Time, the Surviving Corporation, or their respective Subsidiaries, or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of the Parent, the Surviving Corporation or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any Restrictive Order, which would have the effect of preventing or delaying the Acceptance Time beyond the Outside Date; provided, however, that neither the Parent nor any of its Subsidiaries shall be required to take any of the actions under this Section 6.4(d) or any other provision of Section 6.4 that would reasonably be expected to have, either individually or in the aggregate, a material adverse effect on the Parent, the Company, or any of their respective Subsidiaries. For the purposes of this provision, a material adverse effect shall be measured relative to the size of the Company and its Subsidiaries taken as a whole, regardless of whether such actions are imposed on, or affect, the Parent, the Company, or any of their respective Subsidiaries.
(e) For the avoidance of doubt, subject to Section 6.4(d), the Parent shall take any and all actions necessary in order to ensure that (i) no requirement for a waiver, consent, approval or termination of applicable waiting periods of the Federal Trade Commission, the Antitrust Division of the Department of Justice, any State Attorney General or other Governmental Entity and (ii) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, in each case pursuant to any Antitrust Law, would preclude consummation of the Offer or the Merger by the Outside Date.
Appears in 2 contracts
Samples: Merger Agreement (Cynosure Inc), Merger Agreement (Hologic Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions and limitations set forth in this Agreement (including those contained in this Section 5.095.11), each of the parties 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 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 Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), (iii) and (iiiiv) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Holdco, Rooster Merger Sub, Sub or Second Parent 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 make, or cause to be made, as soon as reasonably practicable and after consultation with the other party (including considering the other party’s comments in good faith), an appropriate response in compliance with such request, and, if permitted by applicable Law and by any applicable Governmental EntityLaw, 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. Notwithstanding the foregoing, each party has the right to redact or otherwise exclude the other party from receiving any confidential competitively sensitive information required to be shared under this Section 5.11; provided that such other party’s external counsel shall be entitled to receive such confidential competitively sensitive information on an external counsel basis only. Neither Parent nor the Company 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 any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 5.11(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 information and documents requested by any such Governmental Entity 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 5.11(b) hereof, take such actions as are necessary or advisable to obtain prompt approval of the consummation of the transactions contemplated by this Agreement 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 instituted) by a Governmental Entity or private party challenging the Mergers Mergers, the Holdco Stock Issuance, the Holdco Charter Amendment or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, or any other temporary or permanent injunction which could delay or prevent the Company shall cooperate in all respects with ParentClosing, Merger Sub, and Second Merger Sub and the parties shall use its their reasonable best efforts to contest resist, at their respective cost and resist expense, 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, delays or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing, Parent shall have the sole right to devise and implement the strategy for obtaining any necessary clearance or approval, for responding to any request, inquiry, or investigation, for defending any lawsuit challenging the Mergers, the Holdco Stock Issuance, the Holdco Charter Amendment or any other transaction contemplated by this Agreement, and for leading all meetings and communications with any Governmental Entity that has authority to enforce the Antitrust Laws; provided, however, that Parent shall consult with the Company and consider in good faith views expressed by the Company and its Representatives concerning the foregoing.
(d) Without limiting the generality of Parent’s undertakings pursuant to this Section 5.11, but subject to Section 5.11(e), Parent agrees to use its reasonable best efforts including by taking any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity or any other Person so as to enable the parties to consummate the transactions contemplated by this Agreement as promptly as possible, including proposing, negotiating, committing to and effecting, by consent decree, order, hold separate orders, or otherwise the sale, divestiture or disposition of any of its assets, properties or businesses or of the assets, properties or businesses to be acquired by it pursuant to this Agreement as are required to be divested 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 materially delaying or preventing the consummation of the transactions contemplated by this Agreement. In addition, Parent shall use its reasonable best efforts including by defending through Legal Action on the merits any claim asserted in any Governmental Entity by any party in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the consummation of the Closing.
(e) Notwithstanding anything to the contrary contained in this Agreement, including Section 5.11(d), nothing in this Agreement shall require Parent to take any action that will require, or be deemed to require, Parent or the Company to take any action that would reasonably be expected to have or result in a “Material Adverse Impact,” including but not limited to any Material Adverse Impact that would result from (i) disposing or transferring any asset, including those of Parent or the Company; (ii) licensing or otherwise making available to any Person, any technology or other Intellectual Property of Parent or the Company; (iii) holding separate any assets or operations (either before or after the Closing Date) of Parent or the 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 Parent or the Company’s business to obtain any approval or clearance from any Governmental Entity or to prevent the initiation of any Legal Action by any Governmental Entity under any Antitrust Law or to prevent the entry of any decree, judgment, injunction (preliminary or permanent), or any order that would otherwise make the Agreement, Merger, or any contingent agreements unlawful. “Material Adverse Impact” means any material reduction in the value (including any reasonably anticipated economic benefit to be received by Holdco and its Subsidiaries, taken as a whole), measured either individually or in the aggregate of Parent, the Company and the combined business, expected from the Mergers.
Appears in 2 contracts
Samples: Merger Agreement (NRC Group Holdings Corp.), Merger Agreement (Us Ecology, Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.096.09), each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Offer, the Merger and the transactions contemplated by this Agreementhereby, including: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the obtaining of all necessary material consents or waivers from third parties; , and (iii) the execution and delivery of any additional instruments reasonably requested by the other party hereto or necessary to consummate the Mergers Offer, the Merger and to fully carry out the purposes of this Agreement. The Company and Parent Each party hereto shall, subject to applicable Law, promptly: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their respective Subsidiaries that appears in any filing made with, or written materials submitted to, any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. Each party hereto shall promptly inform and provide a copy to the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, any party hereto receives a request for additional information or documentary material from any Governmental Entity with respect to any filing or submission or 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, provide . Each party hereto shall give the other party’s counsel with advance reasonable prior notice of any communication to, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such filing or any such transaction. To the opportunity to attend and extent reasonably practicable, no party hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Entity in respect of any filing made thereto such filing, investigation or other inquiry without giving the other party reasonable prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the opportunity of the other party to attend or participate. To the extent permitted by applicable Law, the parties to this Agreement will consult and cooperate with one another in connection with any analyses, appearance, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party to this Agreement in connection with proceedings under or related to the HSR Act. Any action taken by the Company that is permissible under Section 6.04 shall not be a violation of this Section 6.09(a).
(b) Without limiting the generality of the undertakings pursuant to Section 6.09(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. Neither Parent nor , including preparing and filing any notification and report form and related material required under the Company 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 commit be made within five (5) Business Days of the date of this Agreement) and thereafter to respond as promptly as practicable to any request for additional information or agree documentary material that may be made under the HSR Act or any other applicable Antitrust Laws and (ii) use their reasonable best efforts to take such actions as are necessary or permit any advisable to obtain prompt approval of their respective Subsidiaries to commit to or agree) with the consummation of the transactions contemplated by this Agreement by any Governmental Entity to stay, toll, or extend any expiration of applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)periods.
(bc) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers Offer, the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and parties hereto shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, the Company or any of their respective Affiliates be obligated to sell, transfer or otherwise divest any of its assets, properties or businesses (including assets, properties or businesses that were assets, properties or businesses of the Company or any of its Subsidiaries prior to the Effective Time) or enter into any agreements providing for any such sale, transfer or other divesture or restricting or limiting in any way or to any extent the Company or its Subsidiaries or Affiliates from engaging in any business anywhere in the world, other than the sale, transfer or divestiture of no more than five (5) store locations of the Company or Parent or any of their respective Subsidiaries that Parent, in its reasonable discretion, determines is de minimis to the business or operations of the Company or Parent, as applicable, taken as a whole.
Appears in 2 contracts
Samples: Merger Agreement (Charming Shoppes Inc), Merger Agreement (Ascena Retail Group, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of, and other than as expressly contemplated by, this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shallParent Parties, on the one hand, and the Partnership and the General Partner, on the other hand, shall cooperate with the other and use and shall cause its their respective Subsidiaries to, to use its their reasonable best efforts to (i) take, or cause to be taken, all appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doingall things, all things necessary, proper, 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, directly or indirectly, over all Partnership Interests beneficially owned by Parent, any of its Subsidiaries or the General Partner, as applicable, as of the date of this Agreement or acquired thereafter, and to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreement, including: (i) the obtaining of including preparing and filing as promptly as practicable all documentation to effect all necessary Permitsfilings, waiversnotifications, notices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesother documents; (ii) obtain promptly (and in any event no later than the obtaining Outside Date) all approvals, consents, waivers, clearances, expirations or terminations of all necessary material consents waiting periods, registrations, Permits, authorizations and other confirmations from any Governmental Authority or waivers from third partiesparty necessary, proper or advisable to consummate the transactions contemplated by this Agreement; and (iii) defend any Proceedings challenging this Agreement or the execution and delivery consummation of the transactions contemplated by this Agreement or seek to have lifted or rescinded any additional instruments necessary injunction or restraining order or other order adversely affecting the ability of the parties to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If Notwithstanding anything in this Agreement to the Companycontrary, on the one hand, (A) no party hereto nor its Affiliates shall be obligated pursuant to this Section 6.3 to offer or Parent, Merger Sub, commit or Second Merger Sub, on the other hand, receives a consent to take or refrain from taking any action pursuant to any request for additional information or documentary material from requirement of any Governmental Entity with respect Authority that involves (i) making any divestiture or disposition of any portion of any business or assets or (ii) accepting or entering any consent decree or hold separate order and (B) this Section 6.3 shall not limit the ability of Parent to enter into or effect any acquisition (whether by purchase or merger or otherwise) or disposition approved by the transactions contemplated by this AgreementParent Board so long as such acquisition or disposition is not reasonably expected to prohibit, then it shall use reasonable best efforts to make, prevent 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, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting with material respect hinder, impede or delay the ability of the parties to satisfy 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 conditions 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Rattler Midstream Lp), Merger Agreement (Rattler Midstream Lp)
Reasonable Best Efforts. (a) Upon the terms Each of Center Financial and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto Nara shall, and shall cause its Subsidiaries to, use its all reasonable best efforts (i) to take, or cause to be taken, all actionsactions necessary to comply promptly with all Applicable Legal Requirements which may be imposed on such Party or its Subsidiaries with respect to the Merger and to consummate the Merger, the Bank Merger and the other 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 in doingParty to obtain) any consent, all things necessaryauthorization, properorder or approval of, or advisable any exemption by, any Governmental Entity and/or any other public or private third party which is required to consummate be obtained or made by such Party or any of its Subsidiaries pursuant to Applicable Legal Requirements or any contract or other obligation in connection with the Merger and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this Agreement; provided, including: 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 will result in a condition or restriction on such Party or on the Surviving Corporation having an effect of the type referred to in Section 6.1(f). In furtherance and not in limitation of the Parties’ obligations under this Section 5.3, each of the Parties further agrees as follows:
(i) As soon as practicable after the obtaining date hereof, each of Center Financial and Nara shall, and shall cause its Subsidiaries to, use all reasonable best efforts to prepare all necessary Permits, waivers, documentation and actions or nonactions from Governmental Entities effect all necessary filings in order to obtain the Requisite Regulatory Approvals.
(ii) The Parties will cooperate with each other and will each furnish the other and the making of other’s counsel with all necessary registrations information concerning themselves, their Subsidiaries, directors, officers and filings (including filings with Governmental Entities) stockholders and the taking of all steps such other matters as may be necessary to obtain an approval or waiver fromadvisable in connection with any application, petition or to avoid an action any other statement or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents application made by or waivers from third parties; and (iii) the execution and delivery on behalf of any additional instruments necessary Party or its Subsidiaries to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 connection with the Merger. Center Financial and Nara shall have the right to review in advance all filings made thereto in connection with the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) Agreement with any Governmental Entity (other than with regard to stayinformation reasonably considered confidential by the providing Party). In addition, tollCenter Financial and Nara shall each furnish to the other 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 the providing Party).
(iii) Subject to Applicable Legal Requirements, or extend any applicable waiting period under any applicable LawsCenter Financial and Nara shall permit each other to review and discuss in advance, without and consider in good faith the prior written consent views of the other in connection with, any proposed written or material oral communication (such consent not or other correspondence or memoranda) between it and any Governmental Entity (except for any confidential portions thereof).
(iv) Center Financial and Nara shall promptly inform each other of and supply to be unreasonably withheld, conditionedeach other any communication (or other correspondence or memoranda) received by them from, or delayed)given by them to, any Governmental Entity, in each case, regarding any of the transactions contemplated hereby.
(v) Center Financial and Nara shall ensure that representatives of Center Financial and Nara shall have the right to attend and participate in any hearing, proceeding, meeting, conference or similar event before or with any Governmental Entity or other organization relating to any Requisite Regulatory Approval or otherwise relating to any transactions contemplated by this Agreement, except as may otherwise be required by such Governmental Entity. In furtherance of the foregoing, Center Financial and Nara shall provide each other reasonable advance notice of any such hearing, proceeding, meeting, conference or similar event.
(b) In the event that any administrative Nara agrees to execute and deliver, or judicial action or proceeding is instituted (or threatened cause to be institutedexecuted and delivered by or on behalf of the Surviving Corporation, at or prior to the Effective Time, supplemental indentures and other instruments required for the due assumption of Center Financial’s outstanding debt, guarantees and other securities to the extent required by the terms of such debt, guarantees and securities and the instruments and agreements relating thereto, including under the Indenture dated as of December 30, 2003 between Xxxxx Fargo Bank, National Association, as trustee, and Center Financial, relating to the issuance by Center Financial of its Junior Subordinated Debt Securities due January 7, 2034.
(c) by a Governmental Entity Each of Center Financial and Nara and their respective boards of directors shall, if any state takeover statute or private party challenging similar statute becomes applicable to this Agreement, the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement transactions contemplated hereby, the Company shall cooperate in use all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest ensure that the Merger 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 other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise to minimize the effect of such statute or regulation on this Agreement, the Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Center Financial Corp), Merger Agreement (Nara Bancorp Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)and applicable Law, each of the parties hereto shall, Parties shall act in good faith 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this AgreementAgreement as soon as practicable. Without limiting the foregoing, including: the Parties shall, 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) the obtaining of obtain all necessary Permitsconsents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications or other permissions or actions by, and actions or nonactions from Governmental Entities and the making of give all necessary registrations notices to, and filings (including make all filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding byapplications and submissions to, any Governmental Entities; (ii) the obtaining of all Entity or other person necessary material consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate in connection 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by this Agreement. If Agreement as soon as reasonably practicable; (ii) provide all such information concerning such Party, its affiliates and its officers, directors, employees and partners as may be necessary or reasonably requested in connection with any of the Companyforegoing; (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 one handmerits any claim asserted in any court by any person; and (iv) take any and all reasonable steps necessary to avoid or eliminate every impediment under any antitrust, competition, or Parenttrade regulation law that is asserted by any Governmental Entity with respect to the transactions contemplated hereby so as to enable the consummation of such transactions to occur as expeditiously as possible. Notwithstanding the foregoing, Merger SubDISH 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 Second Merger Sub, on the International Assets.
(b) The Seller and DISH shall keep the other handreasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, receives a request for additional information including promptly furnishing the other with copies of notices or documentary material 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, 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Implementation Agreement, Implementation Agreement (ICO Global Communications (Holdings) LTD)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate obtain the adoption of this Agreement by the stockholders of the Company as contemplated by Sections 4.1(a) and make effective, 4.2(a) and to satisfy all conditions to, in the most expeditious manner practicableconsummate as soon as practicable following such approval, the Merger and the other transactions contemplated by this Agreement and the Distribution Agreement, including: , but not limited to (ia) the obtaining of all necessary Permitsactions, waivers, consents and actions or nonactions approvals from all Governmental Entities and the making of all necessary registrations and filings (including filings with the SEC and all other Governmental Entities) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; Entity, (iib) the obtaining of all necessary material consents consents, approvals or waivers from third parties; and , (iiic) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Distribution 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 with respect to the Merger, this Agreement or the Distribution Agreement vacated or reversed, (d) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated by this Agreement and the Distribution Agreement and (e) causing all conditions to fully carry out the purposes parties’ obligations to consummate (i) the Merger set forth in Article IV of this AgreementAgreement and (ii) the Distribution as set forth in Section 2.1(b) of the Distribution Agreement to be satisfied. The Company and Parent shallCentex, subject upon the other’s request, shall provide all such information reasonably necessary to applicable Law, promptly: (A) cooperate accomplish the foregoing concerning the party’s business 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 information that may be reasonably required in order affairs to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Centex Construction Products Inc), Agreement and Plan of Merger (Centex Corp)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries 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 in doing, all things necessary, properproper or advisable under this Agreement and Applicable Laws to consummate the Arrangement and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including preparing and filing as promptly as practicable all documentation to effect all necessary applications, notices, filings and other documents and to obtain as promptly as practicable all Requisite Regulatory Approvals and all other consents, waivers, Orders, approvals, Permits, rulings, authorizations and clearances necessary or advisable to be obtained from any Third Party or any Governmental Entity in order to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, Arrangement or any of the other transactions contemplated by this Agreement.
(b) Each of Acquiror and the Company shall, including: in connection with the efforts referenced in Section 6.7(a), use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any Proceeding initiated by a private party challenging the obtaining of all necessary PermitsArrangement, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as Party of the case may be, status of any material of the matters contemplated hereby, including providing the other Party with a copy of any written communication from (or summary of oral communications) received by such Party from, or given by such Party to, any Governmental Entity and of any written communication (or summary of oral communications) received or given in connection with any Proceeding by a private party challenging the Arrangement, in each case regarding any of the transactions contemplated hereby, and (iii) to the extent practicable, consult with each other in advance of any meeting or conference with any such Governmental Entity or, in connection with any Proceeding by this Agreement. If a private party challenging the CompanyArrangement, on with any such other Person, and to the one handextent permitted by any such Governmental Entity or other Person, or Parent, Merger Sub, or Second Merger Sub, on give 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 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, provide the other party’s counsel with advance notice and Party the opportunity to attend and participate in such meetings and conferences.
(c) In furtherance and not in limitation of the covenants of the Parties contained in this Section 6.7, if (i) any meeting objections are asserted with any Governmental Entity in respect of any filing made thereto in connection with to the transactions contemplated by this Agreement. Neither Parent nor the Company 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 hereby under any applicable LawsLaw, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(bii) In the event that any administrative or judicial action or proceeding Proceeding is instituted (or threatened to be instituted) by a any Governmental Entity or private party challenging the Mergers Arrangement or the other transactions contemplated hereby as violative of any Law or which would otherwise prevent, delay or impede the consummation, or otherwise materially reduce the contemplated benefits, of the Arrangement or the other transaction transactions contemplated hereby, or (iii) any Law is enacted, entered, promulgated or enforced by a Governmental Entity which would make the Arrangement or the other transactions contemplated hereby illegal or would otherwise prevent, delay or impede the consummation, or otherwise materially reduce the contemplated benefits, of the Arrangement or the other transactions contemplated hereby, then each of the Company and Acquiror shall use its reasonable best efforts to resolve any such objections, actions or Proceedings so as to permit the consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the Parties contained in this Section 6.7, but subject to first complying with the obligations of Section 6.7(c), if any of the events specified in Section 6.7(c)(ii) or any other agreement contemplated hereby(iii) occurs, then each of Acquiror and the Company shall cooperate in all respects with Parent, Merger Sub, each other and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such administrative or judicial action or proceeding Proceeding and to have vacated, lifted, reversed, reversed or overturned any judgment, injunction or other Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, materially delays or restricts materially impedes the consummation, or otherwise materially reduces the contemplated benefits, of the Arrangement or the other transactions contemplated by this Agreement and to have such Law repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement, and each of Acquiror and the Company shall use its reasonable best efforts to defend, at its own cost and expense, any such administrative or judicial actions or Proceedings.
(e) Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.7 shall limit a Party’s right to terminate this Agreement pursuant to Sections 8.1(b) or 8.1(c) so long as such Party has otherwise complied with its obligations under this Section 6.7 prior to such termination.
(f) Each of the Company and Acquiror and their respective Boards of Directors shall, if any Takeover Statute becomes applicable to this Agreement, the Arrangement, or any other transactions contemplated hereby, use its reasonable best efforts to ensure that the Arrangement and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise to minimize the effect of such Takeover Statute on this Agreement, the Arrangement and the other transactions contemplated hereby.
Appears in 2 contracts
Samples: Arrangement Agreement (Magnum Hunter Resources Corp), Arrangement Agreement (NGAS Resources Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained Agreement, and except as set forth on Section 5.05(a) of the Company Disclosure Letter delivered in this Section 5.09)connection with the LP Investment Agreement, each of the parties hereto Seller and the Investor shall, and shall cause its Subsidiaries Affiliates 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, proper or advisable to consummate and make effectiveensure that the conditions set forth in Article VI are satisfied, and to satisfy all conditions to, in consummate the most expeditious manner Transactions as promptly as practicable, the transactions contemplated by this Agreementincluding, including: subject to Section 5.05(d), using reasonable best efforts to (x) contest (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromany Action brought, or threatened to avoid an action or proceeding bybe brought, by any Governmental Entities; Entity seeking to enjoin, restrain, prevent, prohibit or make illegal the consummation of any of the Transactions or to impose any terms or conditions in connection with the Transactions and (ii) any Judgment that enjoins, restrains, prevents, prohibits or makes illegal the obtaining consummation of all any of the Transactions or imposes any terms or conditions in connection with the Transactions, (y) obtain the termination or expiration of any applicable waiting period and/or any approval, consent or authorization necessary material consents or waivers from third parties; under any applicable Foreign Antitrust Laws for the consummation of the Transactions and (iiiz) obtain the execution and delivery consents set forth on Section 6.03(l) of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate Disclosure Letter delivered in connection 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 information that may be reasonably required in order to effectuate the taking of such actionsLP Investment Agreement. Each party hereto shall promptly inform execute and deliver after the Closing such further certificates, agreements and other documents and take such other actions as the other party or parties hereto, as may reasonably request to consummate or implement the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this AgreementTransactions or to evidence such events or matters. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 Notwithstanding anythign else in 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.this
Appears in 2 contracts
Samples: Purchase Agreement (Teekay Offshore Partners L.P.), Purchase Agreement (Teekay Corp)
Reasonable Best Efforts. (a) Upon Except as otherwise provided under Section 5.2 or Section 5.3, and subject to Section 6.3, upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of Parent, Merger Sub and the parties hereto shall, and Company 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 in doing, all things actions that are necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and each of the other transactions contemplated by this Agreement, including: including using reasonable best efforts to (i) cause each of the obtaining conditions to the Merger set forth in Article VII to be satisfied as promptly as practicable after the date of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesthis Agreement; (ii) obtain, as promptly as practicable after the obtaining date of this Agreement, and maintain all necessary material consents actions or waivers non-actions and Consents from third parties; Governmental Authorities and (iii) the execution make all necessary registrations, declarations and delivery of any additional instruments filings with Governmental Authorities, that are necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), and Merger; (iii) immediately above; resist, contest, appeal and (B) supply the other with remove any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 make, or cause to be made, as soon as reasonably practicable Legal Proceeding 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, restricts or restricts restrains the consummation of the transactions contemplated by this AgreementAgreement (including any Legal Proceeding or Order in connection with the matters contemplated by Section 6.3), (iv) obtain all necessary or appropriate Consents under any Material Contracts to which the Company is a party in connection with this Agreement and the consummation of the transactions contemplated hereby and (v) reasonably cooperate with the other party or parties with respect to any of the foregoing. In addition to the foregoing, except as otherwise provided under Section 5.2 or Section 5.3, and subject to Section 6.3, neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, shall take any action, or fail to take any action, that is intended to, or has (or would reasonably be expected to have) the effect of, preventing, materially delaying or materially impairing the ability of such party to consummate the Merger or the other transactions contemplated hereby. Notwithstanding anything to the contrary herein, (i) the Company shall not be required prior to the Effective Time to pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration (including increased rent or other similar payments or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (including a guaranty) or otherwise assume or incur or agree to assume or incur any Liability that is not conditioned upon the consummation of the Merger, to obtain any Consent of any Person (including any Governmental Authority) under any Contract and (ii) Parent and its Affiliates shall not be required to, and, without the prior written consent of Parent, the Company shall not and shall cause its Subsidiaries not to, (A) take any action, or commit to take any action, or agree to any condition or restriction relating to the business, assets, liabilities, rights, obligations, relationships, results of operations, financial condition or operations of, or otherwise limit in any way or to any extent the full exercise of any rights of ownership of, (1) any of Parent, Merger Sub or any of their respective Affiliates or (2) omaveloxolone, (B) take any action, or commit to take any action, or agree to any condition or restriction that has or would reasonably be expected to have an impact on the business, assets, liabilities, rights, obligations, relationships, results of operations, financial condition or operations of, or otherwise limit in any way or to any extent the full exercise of any rights of ownership of the Company or any of its Subsidiaries, in each case, in a manner that would be material to the Company and its Subsidiaries, taken as a whole, or (C) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority to do any of the foregoing, in each case, in connection with this Agreement or the transactions contemplated hereby (each of the items described in this clause (ii), a “Burdensome Condition”).
(b) Parent agrees, on behalf of itself and its Affiliates, that, between the date of this Agreement and the Effective Time, Parent shall not, and shall cause its Affiliates not to, directly or indirectly, (i) acquire or purchase (or agree to acquire or purchase), by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, if doing so would or would reasonably be expected to (A) result in any material delay in obtaining, or materially increase the risk of not obtaining, any Consent of any Governmental Authority required in connection with the transactions contemplated hereby (including the Merger) or (B) prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Merger or the other transactions contemplated hereby, or (ii) take or agree to take any other action (including entering into agreements with respect to any equity investments, joint ventures, acquisitions, mergers, consolidations or business combinations) which would or would reasonably be expected to (A) result in any material delay in obtaining, or materially increase the risk of not obtaining, any Consent of any Governmental Authority required in connection with the transactions contemplated hereby (including the Merger) or (B) prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Merger or the other transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Biogen Inc.), Merger Agreement (Reata Pharmaceuticals Inc)
Reasonable Best Efforts. (a) Upon the terms Each of WIBC and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto BBCN shall, and shall cause its Subsidiaries to, use its all commercially reasonable best efforts (i) to take, or cause to be taken, all actionsactions necessary to comply promptly with all Applicable Legal Requirements which may be imposed on such Party or its Subsidiaries with respect to the Merger and to consummate the Merger, the Bank Merger and the other 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 in doingParty to obtain) any consent, all things necessaryauthorization, properorder or approval of, or advisable any exemption by, any Governmental Entity and/or any other public or private third party which is required to consummate be obtained or made by such Party or any of its Subsidiaries pursuant to Applicable Legal Requirements or any contract or other obligation in connection with the Merger and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this Agreement; provided, including: 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 the Surviving Corporation having an effect of the type referred to in Section 7.1(f). In furtherance and not in limitation of the Parties’ obligations under this Section 6.3, each of the Parties further agrees as follows:
(i) As soon as practicable after the obtaining date hereof, each of WIBC and BBCN shall, and shall cause its Subsidiaries to, use all commercially reasonable efforts to prepare all necessary Permits, waivers, documentation and actions or nonactions from Governmental Entities effect all necessary filings in order to obtain the Requisite Regulatory Approvals.
(ii) The Parties shall cooperate with each other and shall each furnish the other and the making of other’s counsel with all necessary registrations information concerning themselves, their Subsidiaries, directors, officers and filings (including filings with Governmental Entities) stockholders and the taking of all steps such other matters as may be necessary to obtain an approval or waiver fromadvisable in connection with any application, petition or to avoid an action any other statement or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents application made by or waivers from third parties; and (iii) the execution and delivery on behalf of any additional instruments necessary Party or its Subsidiaries to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 connection with the Merger and Bank Merger. WIBC and BBCN shall have the right to review in advance all filings made thereto in connection with the transactions contemplated by this AgreementAgreement with any Governmental Entity. Neither Parent nor In addition, WIBC and BBCN shall each furnish to the Company other a final copy of each such filing made in connection with the transactions contemplated by this Agreement with any Governmental Entity.
(iii) Subject to Applicable Legal Requirements, WIBC and BBCN shall commit permit each other to review and discuss in advance, and consider in good faith the views of the other in connection with, any proposed written or agree material oral communication (or permit other correspondence or memoranda) between it and any Governmental Entity.
(iv) WIBC and BBCN shall promptly inform each other of and supply to each other any communication (or other correspondence or memoranda) received by them from, or given by them to, any Governmental Entity, in each case, regarding any of their respective Subsidiaries the transactions contemplated hereby.
(v) WIBC and BBCN shall ensure that representatives of WIBC and BBCN shall have the right to commit to attend and participate in any hearing, proceeding, meeting, conference or agree) similar event before or with any Governmental Entity or other organization relating to stayany Requisite Regulatory Approval or otherwise relating to any transactions contemplated by this Agreement, tollexcept as may otherwise be required by such Governmental Entity (and in such event, only after WIBC or extend any applicable waiting period under any applicable LawsBBCN, without as the prior written consent case may be, has advised such Governmental Entity of its insistence that the other Party be permitted to attend). In furtherance of the foregoing, WIBC and BBCN shall provide each other (reasonable advance notice of any such consent not to be unreasonably withheldhearing, conditionedproceeding, meeting, conference or delayed)similar event.
(b) In Notwithstanding the event that any administrative foregoing or judicial action anything else to the contrary contained in this Agreement, nothing in this Agreement shall preclude either Party from meeting with its regulators on its own volition to discuss confidential supervisory information.
(c) BBCN agrees to execute and deliver, or proceeding is instituted (or threatened cause to be institutedexecuted and delivered by or on behalf of the Surviving Corporation, at or prior to the Effective Time, supplemental indentures and other instruments required for the due assumption of WIBC’s outstanding debt, guarantees and other securities to the extent required by the terms of such debt, guarantees and securities and the instruments and agreements relating thereto.
(d) by a Governmental Entity Each of WIBC and BBCN and their respective boards of directors shall, if any state takeover statute or private party challenging similar statute becomes applicable to this Agreement, the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement transactions contemplated hereby, the Company shall cooperate in use all respects with Parent, Merger Sub, and Second Merger Sub and shall use its commercially reasonable best efforts to contest ensure that the Merger 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 other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise to minimize the effect of such statute or regulation on this Agreement, the Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Wilshire Bancorp Inc), Merger Agreement (BBCN Bancorp Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of, and other than as expressly contemplated by, this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shallP66 Parties, on the one hand, and the Partnership and the General Partner, on the other hand, shall cooperate with the other and use and shall cause its their respective Subsidiaries to, to use its their reasonable best efforts to (i) take, or cause to be taken, all appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doingall things, all things necessary, proper, 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, directly or indirectly, over all Common Units and the General Partner Interest in the Partnership beneficially owned by Parent, any of its Subsidiaries or the General Partner, as applicable, as of the date of this Agreement or acquired thereafter, and to 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 including preparing and filing as promptly as practicable all documentation to effect all necessary Permitsfilings, waiversnotifications, notices, petitions, statements, registrations, submissions of information, applications and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesother documents; (ii) obtain promptly (and in any event no later than the obtaining Outside Date) all approvals, consents, waivers, clearances, expirations or terminations of all necessary material consents or waivers from third parties; waiting periods, registrations, Permits, authorizations and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication confirmations from any Governmental Entity regarding any of Authority or third party necessary, proper or advisable to consummate the transactions contemplated by this Agreement. If ; and (iii) defend any Proceedings challenging this Agreement or the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any 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 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 by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Phillips 66), Merger Agreement (Phillips 66 Partners Lp)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate obtain the adoption of this Agreement by the stockholders of the Company as contemplated by Sections 4.1(a) and make effective, 4.2(a) and to satisfy all conditions to, in the most expeditious manner practicableconsummate as soon as practicable following such approval, the Merger and the other transactions contemplated by this Agreement and the Distribution Agreement, including: , but not limited to (ia) the obtaining of all necessary Permitsactions, waivers, consents and actions or nonactions approvals from all Governmental Entities and the making of all necessary registrations and filings (including filings with the SEC and all other Governmental Entities) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; Entity, (iib) the obtaining of all necessary material consents consents, approvals or waivers from third parties; and , (iiic) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Distribution 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 with respect to the Merger, this Agreement or the Distribution Agreement vacated or reversed, (d) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated by this Agreement and the Distribution Agreement and (e) causing all conditions to fully carry out the purposes parties' obligations to consummate (i) the Merger set forth in Article IV of this AgreementAgreement and (ii) the Distribution as set forth in Section 2.1(b) of the Distribution Agreement to be satisfied. The Company and Parent shallCentex, subject upon the other's request, shall provide all such information reasonably necessary to applicable Law, promptly: (A) cooperate accomplish the foregoing concerning the party's business 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 information that may be reasonably required in order affairs to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Centex Corp), Merger Agreement (Centex Construction Products Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, Cyclone and Hurricane shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions, actions and to do, or cause to be done, all things necessary, proper or advisable under Applicable Law to consummate the Merger and the other transactions contemplated by this Agreement, including (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) 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 (iii) obtaining and maintaining all approvals, consents, waivers, licenses, orders, registrations, permits, authorizations, clearances and other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement; provided that the parties hereto understand and agree that in no event shall any party be required by this Section 8.01 or any other provision of this Agreement (i) to enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby or (ii) to divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing) with respect to any of its Subsidiaries or any of their respective Affiliates’ businesses, assets or properties in any such case in (i) or (ii) that would reasonably be expected to (x) materially and adversely diminish the benefits expected to be derived by the parties on the date of this Agreement from the combination of Hurricane and Cyclone via the Merger (such combined business to be taken as a whole), in such a manner that such party would not have entered into this Agreement in the face of such materially and adversely diminished benefits or (y) otherwise have a Material Adverse Effect after the Effective Time on Hurricane and its Subsidiaries (including the Surviving Corporation), taken as a whole, ignoring for this purpose only clause (vi) of the definition of Material Adverse Effect insofar as it relates to the matters under consideration with respect to the applicable provision of this Agreement (as described in this clause (y), a “Regulatory Material Adverse Effect”).
(b) In furtherance and not in limitation of the foregoing, each of Hurricane and Cyclone shall make an appropriate filing of a Notification and Report Form (“HSR Filing”) pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and to assist supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. Each party shall cooperate with the other parties party to the extent necessary to assist the other party in doingthe preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act and, if requested, to promptly amend or furnish additional information thereunder. No party shall voluntarily extend any waiting period under the HSR Act and/or enter into any agreement with a Governmental Authority to delay or not to consummate the Merger or any of the other transactions contemplated by this Agreement except with the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned and which reasonableness shall be determined in light of each party’s obligation to do all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity objections are asserted with respect to the transactions contemplated by Merger or 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period Agreement under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditionedantitrust or competition law, or delayed).
(b) In the event that if any administrative or judicial action suit or proceeding is instituted (or threatened to be instituted) by a any Governmental Entity or private party challenging the Mergers Authority or any other transaction contemplated by person challenging the Merger or this Agreement, Agreement as violative of any applicable antitrust or any other agreement contemplated herebycompetition law, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and parties shall use its their commercially reasonable best efforts to contest and resist any resolve such action objections, suit 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 Agreementproceeding.
Appears in 2 contracts
Samples: Merger Agreement (Hologic Inc), Merger Agreement (Cytyc Corp)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things actions that are necessary, proper, proper or advisable under this Agreement and applicable Laws to consummate and make effectiveeffective the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to resist, contest or defend any Actions (including administrative Actions) challenging the Merger or the completion of the transactions contemplated hereby, including using reasonable best efforts to 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; provided, that nothing contained herein shall preclude any party from exercising its rights under this Agreement; provided, further, that no party shall be required to take any action pursuant this Section 5.6 if the taking of such action is reasonably likely to result in a condition or restriction having an effect of the type referred to in Section 6.1(b)(2).
(b) The parties shall, and to satisfy all conditions shall cause their respective Subsidiaries to, in the most expeditious manner practicablecooperate and use all reasonable best efforts to prepare as promptly as possible all documentation, to effect all filings and to obtain all permits, consents, approvals and authorizations of Governmental Entities necessary to consummate the transactions contemplated by this Agreement, including: including satisfactory resolution of any outstanding audit or tax adjustment required by the IRS or necessary to comply with applicable legal, regulatory and accounting requirements, and consummation of the Merger (i) the “Requisite Regulatory Approvals”), and will make all necessary filings in respect of those Requisite Regulatory Approvals as soon as practicable. Each of the parties will have the right to review in advance, and to the extent practicable each will consult with the other, in each case subject to applicable laws relating to the confidentiality of information, all information relating to such party and any of its subsidiaries, that appear in any filing made with or written materials submitted to any Governmental Entity in connection with the Requisite Regulatory Approvals, including without limitation prior Tax Returns that need to be revised or amended. In exercising the foregoing right, each of the parties will act reasonably and as promptly as practicable. Each party agrees that it will consult with the other party with respect to obtaining all material permits, consents, approvals and authorizations of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary advisable to consummate the Mergers and to fully carry out the purposes of transactions contemplated by this Agreement, and each party will keep the other party apprised of the status of material matters relating to completion of the transactions contemplated hereby. The parties shall promptly deliver to each other copies of all filings, correspondence and orders to and from all Governmental Entities in connection with the transactions contemplated hereby, including seeking the Requisite Regulatory Approvals; provided, that each party may redact such information as may reasonably be considered proprietary, sensitive or confidential (including financial projections, business plans or personal information).
(c) Each of the parties hereto shall, upon request, furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing. In exercising the foregoing rights, each of Purchaser and Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any Governmental Entity, Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the Purchaser shall keep each other in the taking reasonably apprised of the actions status of matters relating to the completion of the transactions contemplated by clauses (i)hereby, (ii), and (iii) immediately above; and (B) supply including promptly furnishing the other with any information that may be reasonably required in order to effectuate the taking copies of such actions. Each party hereto shall promptly inform the substantive notices or other party substantive written communications received by Company or parties heretoPurchaser, as the case may be, of any material communication from any Governmental Entity regarding or any of the transactions contemplated by this Agreement. If the Companytheir respective Subsidiaries, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)transactions.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Iberiabank Corp), Merger Agreement (Iberiabank Corp)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), The Parties shall cooperate with each of the parties hereto shallother, and shall cause its each of their respective Subsidiaries or Representatives to, as the case may be, (i) promptly prepare and file all Filings with Governmental Entities that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement, including the Merger; and (ii) use its reasonable best efforts promptly to (A) obtain all Regulatory Approvals of all Governmental Entities, and to comply with the terms and conditions thereof, and (B) take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the all other parties in doing, all things necessary, proper, proper or advisable under applicable Law or otherwise to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreement, including: including the Merger, in the most expeditious manner practicable (i) and, in any event, by no later than the obtaining of End Date). Each Party shall furnish all necessary Permits, waiversinformation reasonably required for any Filing to be made pursuant to this Section 6.2 and shall have the right to review in advance, and actions or nonactions from Governmental Entities and each will consult the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromother on, or to avoid an action or proceeding by, any Governmental Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, in each case subject to applicable LawLaws relating to the confidentiality of information, promptly: (A) cooperate and coordinate with the other in the taking all of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order relating to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one handits Subsidiaries or Representatives, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity with respect otherwise relating to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to makethat appears in any such Filing made with, or cause to be madeother written materials submitted to, 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In furtherance and not in limitation of the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreementforegoing, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Subeach Party shall, and Second Merger Sub and shall cause its respective Subsidiaries to, use its their reasonable best efforts to contest and resist any such action avoid (i) the entry of, or proceeding and to have vacated, lifted, reversedreversed or overturned, or overturned any OrderJudgment, whether temporary, preliminary, preliminary or permanent, that is in effect would restrain, prevent or delay the Closing, including vigorously defending any Proceedings, whether judicial or administrative, challenging this Agreement or the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed, and that prohibits(ii) or eliminate each and every impediment under any applicable Law so as to enable the Closing to occur as soon as possible, preventsincluding proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or restricts otherwise, the sale, divestiture, licensing or disposition of businesses or assets of Parent, the Company or their respective Subsidiaries or otherwise taking or committing to take actions that limit Parent’s or its Subsidiaries’ freedom of action with respect to, or their ability to retain, any of their respective businesses or assets or those of the Company or its Subsidiaries, in each case, as may be required in order to avoid the entry of, or to effect the dissolution or lift of, any injunction, temporary restraining order, or other order in any Proceeding, which would otherwise have the effect of preventing or delaying the consummation of the transactions contemplated by this Agreement. No Party shall consent to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the request of any Governmental Entity without the consent of the other Parties to this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zhongpin Inc.), Merger Agreement (Zhongpin Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.095.12), each of the parties 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 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 Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) the execution and delivery of the Contingent Value Rights Agreement and any additional instruments necessary to consummate the Mergers Merger and to fully carry out the purposes of this Agreement. 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 Company Target and Parent Aytu shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the CompanyTarget, on the one hand, or Parent, Merger Sub, Aytu or Second 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 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, provide the other party’s '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 Aytu nor the Company 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 any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with ParentTarget, Merger Sub, Aytu and Second Merger Sub and shall each use its reasonable best efforts to contest 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.
(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
Samples: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Innovus Pharmaceuticals, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained Agreement, and except where a different standard of effort is provided in this Section 5.09)Agreement, each of the parties hereto shall, shall use (and shall cause its Subsidiaries to, use affiliates to use) its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or cause to be takentaken promptly, all actions, and to dodo promptly, or cause to be donedone promptly, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate and make effective, effective the Merger and to satisfy all conditions to, in the most expeditious manner practicable, the other transactions contemplated by this Agreement, including: including without limitation (i) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals, including the PDN and NAPW Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromfilings, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents consents, approvals or waivers from third parties; parties and (iii) the execution executing and delivery of delivering any additional instruments necessary to consummate the Mergers Merger and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that If any administrative or judicial action or proceeding or any proceeding or action by a private party, is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this AgreementAgreement or seeking to restrain, enjoin or any other agreement contemplated herebyotherwise prohibit the consummation of the Merger, the Company each of NAPW and PDN shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub each other and shall use its their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Orderdecree, judgment, injunction or other order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.6 shall limit a party’s right to terminate this Agreement pursuant to Section 8.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 6.6.
Appears in 2 contracts
Samples: Merger Agreement (Professional Diversity Network, Inc.), Merger Agreement (Ladurini Daniel)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 party in doing, all things necessary, properproper or advisable, or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner as soon as reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including, but not limited to: (i) the obtaining of all necessary Permitsactions or non-actions, waivers, consents and actions or nonactions approvals from all Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) with, and the taking of all other reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental EntitiesEntity (including those in connection with the HSR Act and any State Takeover Approvals); (ii) the obtaining of all necessary material consents 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 seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iiiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of transactions contemplated by this Agreement. The Company and Parent shall, subject to applicable Law, promptly: .
(Ab) 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 information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform 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 other party contrary: (i) neither IGL nor FTX shall be obligated to use its reasonable best efforts or parties heretoto take any action (or omit to take any action) pursuant to this Agreement if the Board of Directors of IGL or FTX, 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 filing or submission or other action required to be made or taken by either IGL or FTX to effect the Merger and to consummate the other transactions contemplated hereby, 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 communication from any Governmental Entity regarding portions thereof or any of the transactions contemplated by this Agreement. If the Companybusiness, on the one handproduct lines, properties or Parent, Merger Sub, assets of IGL or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)its Affiliates.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Imc Global Inc), Merger Agreement (Freeport McMoran Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, Shareholders and shall cause its Subsidiaries to, Buyer 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated hereby and by this Agreementthe Ancillary Agreements and to obtain satisfaction or waiver of the conditions precedent to such transactions, including: including (i) the obtaining of all necessary Permits, waivers, and actions or nonactions and Consents from Governmental Entities Authorities and the making of all necessary registrations and filings (including filings with Governmental Entities) as promptly as practicable and the taking of all steps as may be necessary to obtain an approval or waiver a Consent from, or to avoid an action Action or proceeding by, any Governmental Entities; Authority, (ii) the obtaining of all necessary material consents or waivers Consents from third parties; parties (all at the Shareholders’ expense), (iii) the defending of any Actions challenging this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any Governmental Authority vacated or reversed, and (iiiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The Company Agreement and Parent shall, subject to applicable Law, promptly: the Ancillary Agreements.
(Ab) cooperate and coordinate with Without limiting the other in the taking generality of the actions contemplated by clauses (i)foregoing, (ii)if required, each party shall make an appropriate filing of a Notification and (iii) immediately above; and (B) supply Report Form pursuant to the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity HSR Act with respect to the transactions contemplated by hereby as promptly as practicable after the date of this Agreement, then it but in any event not later than ten (10) days after the date hereof, and thereafter make any other required submissions with respect to the transactions contemplated hereby under the HSR Act and take all other appropriate actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as practicable. The parties shall each request early termination of the waiting period under the HSR Act.
(c) To the extent not prohibited by Law, the Shareholders and Buyer shall use reasonable best efforts to make, furnish to each other all information required for any application or cause other filing 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 made pursuant to any 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 Each party shall give the Company other party reasonable prior notice of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Authority regarding any such filings or any such transaction. No party shall commit to independently participate in any meeting, or agree (or permit engage in any of their respective Subsidiaries to commit to or agree) substantive conversation, with any Governmental Entity to stayAuthority in respect of any such filings, toll, investigation or extend any applicable waiting period under any applicable Laws, other inquiry without the prior written consent of giving the other (party prior notice of such consent not to be unreasonably withheld, conditioned, or delayed)meeting.
(bd) In Without limiting the event that any administrative or judicial action or proceeding is instituted (or threatened generality of Buyer’s undertaking pursuant to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this AgreementSection 6.3, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall Buyer agrees to use its reasonable best efforts to contest and resist any such action or proceeding and to have vacatedtake any and all steps necessary to avoid or eliminate each and every impediment under any antitrust, liftedcompetition or trade regulation Law that may be asserted by any Governmental Authority so as to enable the parties hereto to close the transactions contemplated by this Agreement as promptly as possible, reversedincluding proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or overturned otherwise, the sale, divestiture or disposition of any Orderof its assets, whether temporaryproperties or businesses or of the assets, preliminaryproperties or businesses to be acquired by it pursuant to this Agreement as are required to be divested in order to avoid the entry of, or permanentto effect the dissolution of, that is any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect and that prohibits, prevents, of materially delaying or restricts preventing the consummation of the transactions contemplated by this Agreement. In connection with the foregoing, Buyer shall use its reasonable best efforts to defend through litigation on the merits any claim asserted by any Governmental Authority in court in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the consummation of the Closing.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreement, including: including using its reasonable best efforts (i) to obtain any other consents or approvals as are necessary in connection with the obtaining consummation of the transactions contemplated hereby, (ii) to effect all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings as are necessary or desirable in connection with the consummation of the transactions contemplated hereby, (including filings iii) to defend any lawsuits or other legal proceedings, whether judicial or administrative, whether brought by private parties or Governmental Authorities or officials, challenging this Agreement or the consummation of the transactions contemplated hereby, and (iv) to furnish to each other such information and assistance and to consult with Governmental Entities) and respect to the taking terms of all steps any registration, filing, application or undertaking as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; (ii) reasonably requested in connection with the obtaining of all necessary material consents or waivers from third parties; foregoing and (iiiv) to ensure that the execution and delivery conditions of Closing for the benefit of the other party set out in this Agreement have been performed or satisfied prior to Closing.
(b) Notwithstanding the foregoing or any additional instruments necessary to consummate the Mergers and to fully carry out the purposes other provision of this Agreement. The , nothing in this Section 5.2 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 up to then complied in all respects with its obligations under this Section 5.2.
(c) If applicable, the Company and Parent shallshall duly file with the FTC and the Antitrust Division the notification and report form (the “HSR Filing”) required under the HSR Act with respect to the transactions contemplated hereby no later than the seventh Business Day following the date hereof. If applicable, subject to applicable Law, promptly: (A) the HSR Filing shall be in substantial compliance with the requirements of the HSR Act. Each party shall cooperate and coordinate with the other in party to the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order extent necessary to effectuate the taking of such actions. Each party hereto shall promptly inform assist the other party in the preparation of its HSR Filing, to request early termination of the waiting period required by the HSR Act and, if requested, to promptly amend or parties heretofurnish additional information thereunder, if applicable. Each of the Company and Parent shall as promptly as practicable comply with the case may be, laws and regulations of any material communication from any other Governmental Entity regarding Authority that are applicable to any of the transactions contemplated by this Agreement. If Agreement and the CompanyAncillary Agreements and pursuant to which any consent, on the one handapproval, order or authorization of, or Parentregistration, Merger Subdeclaration or filing with, such Governmental Authority is necessary. Parent and the Company shall furnish to each other all such information as is necessary to prepare any such registration, declaration or Second Merger Subfiling. Parent and the Company shall keep each other apprised of the status of any communications with, on the other hand, receives a request and any inquiries or requests for additional information or documentary material from from, any Governmental Entity Authority with respect to the transactions contemplated by this Agreement, then Agreement and the Ancillary Agreements.
(d) Each of the Company and Parent agrees that 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, andwill, if permitted by applicable Law necessary to enable the Company and by any applicable Governmental Entity, provide the other party’s counsel with advance notice and the opportunity Parent to attend and participate in any meeting with any Governmental Entity in respect of any filing made thereto in connection with consummate the transactions contemplated by this Agreement. Neither Parent nor Agreement and the Ancillary Agreements, defend against any suits, actions or proceedings, judicial or administrative, challenging this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated hereby or thereby, including by seeking to vacate or reverse any temporary restraining order, preliminary injunction or other legal restraint or prohibition entered or imposed by any court or other Governmental Authority that is not yet final and nonappealable; provided, that (i) the Company shall commit not be under any such obligation to defend against any such actions or agree (or permit any of their respective Subsidiaries to commit to or agree) with proceedings commenced by any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent Authority in respect of the antitrust, competition, merger control or similar laws, rules or regulations, and (ii) Parent agrees that it shall make an offer to and enter into an agreement with the FTC, the Antitrust Division and/or any other Governmental Authority to divest, and to hold separate pending such divestiture, any and all assets and operations of the Business (such consent not and/or approximately equivalent assets or businesses of Parent) as are necessary to be unreasonably withheld, conditioned, or delayed).
(b) In prevent the event that commencement of any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging seeking, and/or prevent the Mergers or any other transaction contemplated by this Agreemententry of, or any effect the dissolution of, a decree, restraining or other agreement contemplated herebyorder and/or preliminary or permanent injunction preventing the consummation, the Company shall cooperate in all respects with Parentwhole or in part, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this AgreementAgreement and to permit the Company and Parent to otherwise fully consummate the transactions contemplated by this Agreement and the Ancillary Agreements and the Closing and the purchase and sale of the Transferred Assets pursuant hereto.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)and Applicable Law, each of the parties hereto shall, Sellers and the Purchaser shall cause its Subsidiaries to, use its their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this AgreementAgreement as soon as practicable. Without limiting the foregoing, including: the parties shall take all necessary actions to (i) the obtaining of obtain all necessary Permitsconsents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications or other permissions or actions by, and actions or nonactions from Governmental Entities and the making of give all necessary registrations notices to, and filings (including make all filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding byapplications and submissions to, any Governmental Entities; (ii) the obtaining of all Entity or other Person necessary material consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate in connection 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by this Agreement. If Agreement as soon as reasonably practicable; (ii) provide all such information concerning such party as may be necessary or reasonably requested in connection with any of the Companyforegoing; (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 one handmerits any claim asserted in any court by any Person; and (iv) take any and all reasonable steps necessary to avoid or eliminate every impediment under any antitrust, competition, or Parenttrade regulation law that is asserted by any Governmental Entity with respect to the transactions contemplated hereby so as to enable the consummation of such transactions to occur as expeditiously as possible.
(b) The Sellers and the Purchaser shall keep each other reasonably informed as to the status of matters relating to the completion of the transactions contemplated hereby, Merger Sub, or Second Merger Sub, on including promptly furnishing the other handwith copies of notices or other communications received by either of the Sellers or the Purchaser or by any of their Affiliates, receives a request for additional information or documentary material from any Third Party and/or any Governmental Entity 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(bc) In Notwithstanding the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers foregoing or any other transaction contemplated by covenant herein contained, nothing in this Agreement, Agreement shall be deemed to require the Purchaser to take or agree to take any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and agree to any limitation that could reasonably be expected to have vacateda material adverse effect on the Purchaser and its subsidiaries, liftedtaken as a whole, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in after giving effect and that prohibits, prevents, or restricts consummation to the Acquisition.
(d) The obligations of each of the transactions contemplated Sellers and the Purchaser pursuant to this Section 6.4 shall be subject to any orders entered or approvals or authorizations granted by this Agreementthe Bankruptcy Court and the Bankruptcy Code.
Appears in 1 contract
Samples: Stock and Asset Sale Agreement (Warnaco Group Inc /De/)
Reasonable Best Efforts. (a) Upon Subject to the terms and conditions of this Agreement, each Party shall, and shall cause its respective Subsidiaries to, use reasonable best efforts (i) to take, or cause to be taken, all actions necessary or advisable to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Mergers and, subject to the conditions set forth in this Agreement Article IX hereof, to consummate the Transactions, including the Mergers, as promptly as practicable, (including those ii) to obtain (and to cooperate with the other Parties to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to be obtained by such party or any of its Subsidiaries in connection with the Mergers and the other Transactions, and to comply with the terms and conditions of any such consent, authorization, order or approval and (iii) to execute and deliver any additional instruments necessary to consummate the Transactions; provided, that (A) such efforts shall not require agreeing to any obligations or accommodations (financial or otherwise) binding on any of the Parties or any of their respective Subsidiaries in the event the Closing does not occur, (B) nothing contained in this Section 5.09)7.3 shall limit, expand or otherwise modify in any way any efforts standard explicitly applicable to any such Party’s or any of its Subsidiaries’ obligations under this Agreement and (C) each Blocker shall only be required to use such efforts with respect to its applicable Merger and the other Transactions to which such Blocker is a party.
(b) Subject to the terms and conditions of this Agreement, each of the parties hereto shall, and Party 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 in doing, all things necessary, proper, necessary or advisable to consummate and make effective, and to satisfy all conditions to, in as soon as practicable after the most expeditious manner practicable, the transactions contemplated by date of this Agreement, including: the Transactions, including using reasonable best efforts to lift or rescind any injunction or restraining order or other order adversely affecting the ability of such party to consummate the Transactions and using reasonable best efforts to defend any Proceeding seeking to enjoin, prevent or delay the consummation of the Transactions or seeking material damages; provided, that (A) such efforts shall not require agreeing to any obligations or accommodations (financial or otherwise) binding on the Parties or any of their respective Subsidiaries in the event the Closing does not occur, (B) nothing contained in this Section 7.3 shall limit, expand or otherwise modify in any way any efforts standard explicitly applicable to any such Party’s or any of its Subsidiaries’ obligations under this Agreement, and (C) each Blocker shall only be required to use such efforts with respect to its applicable Merger and the other Transactions to which such Blocker is a party.
(c) In furtherance and not in limitation of the foregoing, (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 each Party agrees to make, or cause to be made, any required filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (and nCino shall direct each nCino stockholder, and the Company shall direct each Blocker Securityholder and Non-Blocker Member, to make, or cause to be made, any required filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions, as necessary) as promptly as practicable and in any event within ten (10) Business Days of the date hereof, unless otherwise agreed to by the Parties, and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use its reasonable best efforts to take, or cause to be taken, all other actions consistent with this Section 7.3(c) necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as reasonably practicable and after consultation with (ii) each of the other partyParties shall each use its reasonable best efforts to (x) take all action reasonably necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the Transactions and (y) if any state takeover statute or similar Law becomes applicable to any of the Transactions, an appropriate response in compliance with take all action reasonable to enable the Transactions to be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such request, and, if permitted by applicable Law and by any applicable Governmental Entity, provide on the other party’s counsel with advance notice Transactions. Each of nCino and the opportunity Company shall bear 50% of the filing fees, costs and expenses under the HSR Act and any other applicable antitrust Law, with respect to attend any and participate all filings required to be made by nCino under the HSR Act and any other applicable antitrust Law with respect to the Transactions (such fees, costs and expenses, the “nCino Filing Fees”). Notwithstanding anything to the contrary in this Agreement, (A) nCino agrees to promptly pay or reimburse the Company, any meeting with nCino stockholder, any Governmental Entity in respect Blocker Securityholder and any Non-Blocker Member, as applicable, for 50% of any the filing made thereto fees, costs and expenses incurred or payable by the Company, such nCino stockholder, such Blocker Securityholder or such Non-Blocker Member, as the case may be, in connection with the transactions contemplated Required HSR Filings and any and all other filings required to be made by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agreesuch Person(s) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any other applicable Lawsantitrust Law with respect to the Transactions, without by wire transfer of immediately available funds to the prior written consent account(s) designated in writing by such Person(s), and (B) each nCino stockholder, Blocker Securityholder and Non-Blocker Member is a third-party beneficiary of this sentence and is entitled to the other (rights and benefits granted thereby and may enforce such consent not to be unreasonably withheld, conditioned, or delayed)rights and benefits as if such Person was a party hereto.
(bd) In Each of the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and Parties shall use its reasonable best efforts to contest (i) cooperate with each other in connection with (A) determining whether any filing or submission with a Governmental Entity in connection with the Transactions and resist in connection with any such action or proceeding and Proceeding relating to have vacatedthe Transactions, liftedincluding any Proceeding initiated by a private party, reversedis required to be made with, or overturned consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any Order, whether temporary, preliminary, or permanent, that is third parties to other Governmental Entities in effect connection with the execution and that prohibits, prevents, or restricts delivery of this Agreement and the consummation of the transactions Transactions and (B) timely making all such filings and submissions and timely obtaining all such consents, permits, authorizations or approvals; (ii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iii) keep the other Parties informed in all material respects and on a reasonably timely basis of any communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Entity and of any communication received or given by a private third party in connection with any Proceeding, in each case regarding any of the Transactions in connection with proceedings under or relating to any antitrust Law. Subject to applicable Laws relating to the exchange of information, each of the Parties shall have the right to review in advance, and to the extent practicable each will consult the other on any, filing made with, or written materials constituting material communications submitted to, any third party and/or any Governmental Entity in connection with any Proceeding with respect to the Transactions in connection with proceedings under or relating to any antitrust Law. Subject to applicable Laws relating to the exchange of information, each Party shall give the other party reasonable advance notice of all material communications with any Governmental Entity and each Party shall, to the extent permitted by the relevant regulator, have the right to attend and participate in material conferences, meetings and telephone or other communications between the other Parties and regulators concerning the Transactions. The Parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 7.3 as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside antitrust counsel to employees, officers, directors or other Representatives of the recipient unless express permission is obtained in advance from the source of the materials (the applicable Party) or its legal counsel. Notwithstanding anything to the contrary in this Section 7.3, materials provided to another Party or its outside counsel may be redacted to remove references concerning the valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of the Parties and their respective Subsidiaries.
(e) Notwithstanding Sections 7.3(a) – (d) or any other provision of this Agreement to the contrary, in no event shall nCino or Parent or their Subsidiaries or Affiliates be required to agree to (nor shall the Acquired Companies, without nCino’s prior written consent, propose or commit to any third party that it or nCino or Parent or their Subsidiaries or Affiliates will) (i) divest, license, hold separate or otherwise dispose of, encumber or allow a third party to utilize, any portion of its or their respective businesses, assets or Contracts or (ii) take any other action that may be required or requested by any Governmental Entity in connection with obtaining the consents, authorizations, orders or approvals contemplated by this AgreementSection 7.3 that, in the case of clauses (i) and (ii), would have an adverse impact, in any material respect, on (A) the business of nCino and its Subsidiaries, taken as a whole, or (B) the business of the Acquired Companies, taken as a whole (each a “Regulatory Action”).
(f) nCino, Parent and each Party hereto that is required to make a Required HSR Filing shall not, and shall not permit any of their Subsidiaries 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 of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation would reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Entity entering an Order prohibiting the consummation of the Transactions, or (iii) delay the consummation of the Transactions.
(g) Following the Closing, each Party shall, and shall cause its respective Subsidiaries to, use reasonable best efforts to cooperate with each other in connection with preparing and filing the Form FIN 531 — Change of Control filing to be made with the Texas Department of Insurance pursuant to Tex. Ins. Code § 4001.253 with respect to the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Ncino, Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, Company and Parent 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 party in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner as promptly as practicable, the Merger and the other transactions contemplated to be performed or consummated by such party in accordance with the terms of this Agreement, including: including (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities Authorities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; Authority, (iiiii) the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, (iv) the obtaining of all necessary material consents consents, approvals or waivers from third parties; , and (iiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers Merger and other transactions contemplated hereby and to fully carry out the purposes of this Agreement; provided that the parties hereto understand and 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 any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its, the Surviving Corporation’s or any of their respective Affiliates’ businesses, assets or properties that in the aggregate generated EBITDA in the Relevant Period (determined on a pro forma basis with respect to any such businesses, assets or properties acquired subsequent to the commencement of the applicable Relevant Period), based on the internal financial records of Parent or the Company, as applicable, in excess of $20 million, (B) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority that would require it, the Surviving Corporation or any of their respective Affiliates to take any action not required to be taken pursuant to the preceding clause (A), or (C) taking any action to have any preliminary or permanent injunction entered at the request of any Governmental Authority by any court or other Governmental Authority lifted, vacated or reversed. The In addition, if requested by the other party in writing in order to facilitate the obtaining of all necessary actions or nonactions, waiver, consents and approvals from Governmental Authorities, (1) the Board of Directors of the Company shall publicly confirm the Company Board Recommendation within five Business Days of such written request by Parent that it do so, and (2) the Board of Directors of Parent shall publicly confirm the Parent Board Recommendation within five Business Days of such written request by the Company that it do so.
(b) In connection with and without limiting the foregoing, each of Parent and the Company shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and shall make such filings as may be required or desirable pursuant to the Competition Act and any other applicable competition, merger control, antitrust or similar law that the Company and Parent shalldeem advisable or appropriate, 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 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 parties hereto, as the each case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 AgreementAgreement and as promptly as practicable. All such antitrust or competition law filings shall be in substantial compliance with the requirements of the Applicable Laws. Each of Parent and the Company shall supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act or the Competition Act and, then it subject to the proviso in Section 8.02(a), shall take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and to obtain Competition Act Approval as soon as practicable.
(c) Each of Parent and the Company shall use its reasonable best efforts to make(i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or cause to be madegiven by such party to, as soon as reasonably practicable the Antitrust Division of the Department of Justice, the Federal Trade Commission, the Canadian Competition Bureau or any other Governmental Authority, other than in connection with obtaining ICA Approval, if required, and after consultation of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, and (iii) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any such Governmental Authority or, in connection with any proceeding by a private party, an appropriate response in compliance with such requestany other person, and, if and to the extent permitted by applicable Law and by any applicable such Governmental EntityAuthority or other Person, provide give the other party’s counsel with advance notice and party 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)meetings and conferences.
(bd) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, Each of the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and Parent shall use its reasonable best efforts to contest provide the other party such assistance as the other party may reasonably request in connection with the preparation of the Company Proxy Statement or the Parent Shareholder Circular, as the case may be, including the provision of all necessary information and resist the verification thereof. Further, each of the Company and Parent shall use its reasonable best efforts to cause its independent accountants to provide such information and assistance as the other party may reasonable request in connection with the preparation of the Company Proxy Statement or the Parent Shareholder Circular, as the case may be, including the provision of such comfort letters as are customary for the relevant document.
(e) The Company shall use its reasonable best efforts to cooperate with Parent in its efforts to consummate the financing of the transactions contemplated by this Agreement; provided that as a condition to doing so the Company and its directors, officers, employees and agents who are requested to assist in providing such cooperation shall be provided by Parent with full indemnification from Parent. Such reasonable best efforts shall include, to the extent reasonably requested by Parent, (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries, (ii) providing assistance in preparation of confidential information memoranda, preliminary offering memoranda, financial information and other materials to be used in connection with obtaining such financing, (iii) cooperation with the marketing efforts of Parent and its financing sources for such financing, including participation in management presentation sessions, “road shows” and sessions with rating agencies, (iv) providing assistance in obtaining any consents of third parties necessary in connection with such action financing, (v) providing assistance in extinguishing existing indebtedness of the Company and its Subsidiaries and releasing Liens securing such indebtedness, in each case to take effect at the Effective Time, (vi) cooperation with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (vii) assisting Parent in obtaining legal opinions to be delivered in connection with such financing, (viii) assisting Parent in securing the reasonable cooperation of the independent accountants of the Company and its Subsidiaries, including with respect to the delivery of accountants’ comfort letters, and (ix) providing the financial information necessary for the satisfaction of the obligations and conditions set forth in the facility agreements or proceeding and other agreements relating to have vacatedthe Financing within the time periods required thereby. Further, liftedthe Company shall use its reasonable best efforts to provide Parent such assistance as Parent may reasonably request in connection with the preparation of any prospectus, reversedcircular, notice of extraordinary general meeting or overturned any Orderdocument ancillary to the aforementioned as shall be required in connection with the financing, whether temporary, preliminary, syndication or permanent, that is in effect and that prohibits, prevents, or restricts consummation refinancing of the transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement, following the date of this Agreement until the earlier of the Closing or the End Date (including those contained in this and provided that at all times the provisions of Section 5.096.02 shall govern the matters set forth therein), each of the parties hereto shallParent, Merger Sub, and Merger Sub II, on the one hand, and the Company, on the other hand, shall cause its Subsidiaries to, use its their respective reasonable best efforts to take, (i) take (or cause to be taken, ) all actions, and to do, (ii) do (or cause to be done, ) all things and to (iii) assist and cooperate with the other parties Parties in doingdoing (or causing to be done) all things, all things in each case as are reasonably necessary, proper, proper or advisable pursuant to Applicable Law or otherwise 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 Permits, waivers, and actions or nonactions from Governmental Entities Mergers and the making of all necessary registrations and filings (other Transactions, including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 using reasonable best efforts to make, or cause the conditions to the obligations of the other Parties to effect the Mergers set forth in Article 8 to be madesatisfied; provided, as soon as reasonably practicable that in no event shall any Party be required to pay any material fee, penalty or other consideration to obtain any permit, qualification or waiver required under any Contract for the consummation of the Transactions (other than filing fees payable pursuant to |US-DOCS\123754940.16|| the HSR Act or other antitrust laws, and after consultation with the any 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 ordinary course filing made thereto fees in connection with governmental filings required to consummate the transactions contemplated by this Agreement. Neither Parent nor the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayedTransactions).
(b) In furtherance of, and not in limitation of Section 6.01(a), as promptly as practicable after the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by execution of this Agreement, each Party (i) shall make all filings and give all notices that are or any may be required to be made and given by such Party in connection with the Mergers and the other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, Transactions and Second Merger Sub and (ii) shall use its reasonable best efforts to contest and resist obtain all Consents which are or may be required to be obtained (pursuant to any such action or proceeding and to have vacatedApplicable Law, lifted, reversedContract, or overturned any Order, whether temporary, preliminary, or permanentotherwise) by such Party in connection with the Mergers and the other Transactions. provided, that is in effect and that prohibitsno event shall any Party be required to pay any material fee, preventspenalty or other consideration to obtain any permit, qualification or restricts waiver required under any Contract for the consummation of the transactions contemplated Transactions (other than filing fees payable pursuant to the HSR Act or other antitrust laws, and any other ordinary course filing fees in connection with governmental filings required to consummate the Transactions). Each Party shall, upon request of another Party and to the extent permitted by this AgreementApplicable Law or applicable Contract, promptly deliver to such other Party a copy of each such filing made, each such notice given and each such Consent obtained by it.
Appears in 1 contract
Samples: Merger Agreement (Skillz Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner as promptly as practicable, the Merger and the other transactions contemplated to be performed or consummated by such party in accordance with the terms of this Agreement, including: including (i) the taking of all acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities Authorities and the making of all necessary registrations and filings (including filings with Governmental EntitiesAuthorities, if any) 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 Entities; Authority, (iiiii) the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, (iv) the obtaining of all necessary material consents consents, approvals or waivers from third parties; , including any such consents, approvals or waivers required in connection with any divestiture, (v) 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 seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iiivi) the execution and delivery of any additional instruments necessary to consummate the Mergers Merger and other transactions contemplated hereby and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon (i) Each of Parent and Merger Sub, on the terms one hand, Company (and subject its respective Affiliates, if applicable), on the other hand, and all other Persons as may be required under Applicable Law, shall file with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “DOJ”) all requisite documents and notifications relating to this Agreement and the conditions set forth in transactions contemplated hereby as required by the HSR Act and the rules and regulations promulgated thereunder, together with all such other filings and submissions under Applicable Law, as the case may be, for the consummation of the transactions contemplated by this Agreement, no later than five (5) business days following the date of this Agreement (including those contained unless Parent and Company mutually agree in this Section 5.09writing to another date); and (ii) each of Parent and Merger Sub, on the one hand, and Company (and its respective Affiliates, if applicable), each of on the parties hereto shallother hand, and shall cause its Subsidiaries to, use its reasonable best efforts to obtain and maintain in connection with the transactions contemplated by this Agreement all approvals, consents, registrations, permits, authorizations and other confirmations of all Government Authorities or other third parties that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement and to fulfill the conditions to the transactions contemplated by this Agreement.
(b) Each of Parent, Merger Sub and Company shall: (i) cooperate and coordinate with the other in the making of any filings or submissions that are required to be made under any Applicable Laws or requested to be made by any Government Authority in connection with the transactions contemplated by this Agreement; (ii) supply the other or its outside counsel with any material information that may be required or requested by any Government Authority in connection with such filings or submissions; (iii) supply any additional information that may be required or requested by the FTC, the DOJ or other Government Authorities in which any such filings or submissions are made under any Applicable Laws as promptly as practicable; (iv) use their reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any Applicable Laws as soon as reasonably practicable; and (v) use their reasonable best efforts to offer to take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable to consummate and make effectiveeffective the transactions contemplated hereby, including taking all such action and doing all such things necessary to satisfy all conditions toresolve such objections, in if any, as the most expeditious manner practicableFTC, the DOJ, or any other Government Authority or Person may assert under any Applicable Laws with respect to the transactions contemplated by this Agreement, including: and to avoid or eliminate each and every impediment under any Applicable Law that may be asserted by the FTC, the DOJ or any other Government Authority with respect to the transactions contemplated by this Agreement so as to enable the transactions contemplated hereby to be consummated as soon as expeditiously possible.
(ic) Notwithstanding anything to the obtaining of all necessary Permitscontrary set forth in this Agreement, waiversno party is required to, and actions neither Company nor any Company Subsidiary may, without the prior written consent of Parent, become subject to, consent or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings agree to, or otherwise take any action with Governmental Entities) and the taking of all steps as may be necessary respect to, any requirement, condition, limitation, understanding, agreement or Order to obtain an approval sell, to hold separate or waiver fromotherwise dispose of, or to avoid an conduct, restrict, operate, invest or otherwise change the assets or business of Company, Parent or any of their respective Affiliates in any manner which, individually or in the aggregate with all other such requirements, conditions, understandings, agreements and Orders could reasonably be expected to have a material adverse effect (including a reputational effect) on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Parent and the Parent Subsidiaries or Company and the Company Subsidiaries, as applicable, in any material jurisdiction. Notwithstanding anything in this Agreement to the contrary, upon the request of Parent, Company will, and will cause each Company Subsidiary to, become subject to, or consent or agree to or otherwise take any action or proceeding bywith respect to, any Governmental Entities; requirement, condition, understanding, agreement or Order to sell, to hold separate or otherwise dispose of or to conduct, restrict, operate, invest or otherwise change the assets or business of Company or any such Company Subsidiary, so long as such requirement, condition, understanding, agreement or Order is binding on Company or such Company Subsidiary only in the event that the Closing occurs.
(iid) Each of Parent and Merger Sub, on the obtaining of all necessary material consents or waivers from third parties; one hand, and Company (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shallits respective Affiliates, subject to applicable Lawif applicable), promptly: (A) cooperate and coordinate with on the other in the taking of the actions contemplated by clauses (i)hand, (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform keep the other party or parties hereto, as the case may be, promptly informed of any material communication from any Governmental Entity regarding any of the transactions contemplated by this AgreementAgreement in connection with any filings, investigations with, by or before any Government Authority relating to this Agreement or the transactions contemplated hereby, including any proceedings initiated by a private party. If the Company, on the one hand, any party hereto or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Entity Government Authority with respect to the transactions contemplated by this AgreementAgreement pursuant to the HSR Act or any other Applicable Laws with respect to which any such filings have been made, then it such party shall use its 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. In connection with and without limiting the foregoing, andto the extent reasonably practicable and unless prohibited by Applicable Law or by the applicable Government Authority, if permitted by applicable Law and by any applicable Governmental Entity, provide the parties hereto agree to: (i) give each other party’s counsel with reasonable advance notice and the opportunity to attend and participate in any meeting of all meetings with any Governmental Entity in respect of any filing made thereto in connection with Government Authorities relating to the transactions contemplated by this Agreement. Neither Parent nor ; (ii) give each other an opportunity to participate in each of such meetings; (iii) keep the Company shall commit other party reasonably apprised with respect to or agree (or permit any of their respective Subsidiaries to commit to or agree) material oral communications with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of Government Authority regarding the transactions contemplated by this Agreement; (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the transactions contemplated by this Agreement, articulating any regulatory or competitive argument and/or responding to requests or objections made by any Government Authority; (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a Government Authority regarding the transactions contemplated by this Agreement; (vi) provide each other (or outside counsel of each party hereto, as appropriate) with copies of all written communications to or from any Government Authority relating to the transactions contemplated by this Agreement; and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other with respect to, all material deliberations with respect to all efforts to satisfy the conditions set forth in Section 6.2 and Section 6.3.
(e) Notwithstanding anything to the contrary contained in this Agreement: (i) all obligations of the parties hereto with respect to the Debt Financing or any other financing for the transactions contemplated by this Agreement will be governed exclusively by Section 5.17 and Section 5.18 and not this Section 5.6; and (ii) Section 5.6(b) does not apply to any approvals, consents, registrations, permits, authorizations, confirmations, filings, submissions, consents, etc. with respect to any Government Bid or Government Contract, notwithstanding that the counterparty to those contracts and/or bids may be a Government Authority, the intent being for those matters to be governed by Section 5.6(a) above.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, including: including using reasonable best efforts to accomplish the following:
(i) the taking of all reasonable acts necessary to cause the conditions to Closing to be satisfied,
(ii) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, by any Governmental Entities; Entity,
(iiiii) the obtaining of all necessary material consents consents, approvals or waivers from third parties; and parties other than Governmental Entities (iiiprovided that if obtaining any such consent, approval or waiver would require any action other than the payment of a nominal amount, such action shall be subject to the consent of Parent, not to be unreasonably withheld),
(iv) 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 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 Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The In connection with and without limiting the foregoing Parent, Sub and the Company and Parent their respective Boards of Directors shall, subject if any state takeover statute or similar statute becomes applicable to applicable Lawthis Agreement, promptly: (A) cooperate and coordinate the Offer, the Merger or any other transactions contemplated by this Agreement, take all action necessary, with the other in the taking reasonable cooperation of the actions other parties hereto if reasonably requested, to ensure that the Offer, the Merger and the other transactions contemplated by clauses (i)this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, (ii)the Offer, the Merger and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If The Company shall give Parent the Companyopportunity to participate, on an advisory basis, in the one hand, or Parent, Merger Sub, or Second Merger Sub, on defense of any stockholder litigation against the other hand, receives a request for additional information or documentary material from any Governmental Entity with respect Company and/or its directors relating 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In furtherance and not in limitation of the event that any administrative or judicial action or proceeding is instituted (or threatened foregoing, each party hereto agrees to be instituted) by make an appropriate filing of a Governmental Entity or private party challenging Notification and Report Form pursuant to the Mergers or HSR Act and any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects Regulatory Law with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts respect to contest 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 Agreementhereby 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 Xxxxxxx Act, as amended, the Xxxxxxx 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
Samples: Merger Agreement (Yahoo Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (hereof, including those contained in this Section 5.09)6.1, each of the parties party hereto shall, and shall cause its Subsidiaries to, each 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 in doing, all things necessary, proper, proper or advisable under this Agreement and applicable Laws and regulations to consummate and make effective, effective the Transactions and to satisfy all use their respective reasonable best efforts to cause the conditions to, in to each party’s obligation to consummate and make effective the most expeditious manner practicable, Transactions to be satisfied as promptly as reasonably practicable after the transactions contemplated by this Agreementdate hereof, including: (i) as promptly as reasonably practicable, preparing and filing, in consultation with the obtaining of other parties, all documentation to effect all necessary Permitsapplications, notices, petitions, filings, Tax ruling requests and other documents and to obtain any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained by such party (or any of its Subsidiaries) from any Governmental Entity in connection with the authorization, execution and actions or nonactions from Governmental Entities delivery of this Agreement and the making consummation of all necessary registrations and filings (including filings the Transactions; provided, however, that in no event shall any party hereto or any of its Subsidiaries or Affiliates be required to pay any monies or agree to any material undertaking in connection with Governmental Entities) and any of the taking of all steps as may be necessary to obtain an approval or waiver fromforegoing, or to avoid an action or proceeding by, any Governmental Entitiesunless otherwise expressly provided in this Agreement; (ii) contest and resist any action, including any 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) which has the obtaining effect of all necessary material consents making the Transactions illegal or waivers from third partiesotherwise prohibiting consummation of the Transactions; and NYDOCS02/1142212.8 64 (iii) the execution and delivery of execute or deliver any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) parties hereto shall cooperate and coordinate with each other in connection with the other in the taking making of the actions all such filings and submissions contemplated by clauses the foregoing clause (i), including providing copies of all such documents to the non-filing Person and its advisors prior to filing and, if requested, accepting reasonable additions, deletions or changes suggested in connection therewith; provided that each party shall be entitled to redact (ii)x) as necessary to comply with contractual arrangements or applicable Law, (y) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns, and (iiiz) immediately above; to remove references relating to valuation and (B) supply similar matters relating to the other with any information that may be reasonably required in order to effectuate the taking of such actionsTransactions. Each party hereto shall use its reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable law in connection with the Transactions. In furtherance and not in limitation of the foregoing: (i) Public Company agrees to make or cause to be made, in consultation and cooperation with Private Company and the Stockholder, as promptly inform as reasonably practicable and advisable, a notification to the FCA under section 178 of FSMA and related notifications under the FCA Handbook in relation to its acquisition of control (as defined in section 181 of FSMA) of Private Company and Aegis Outsourcing UK Limited; and (ii) each party hereto agrees to make or cause to be made, in consultation and cooperation with the other party or parties hereto(A) as promptly as reasonably practicable and advisable after the date hereof, but in no event later than ten (10) Business Days after the date hereof, an appropriate filing of a Notification and Report Form pursuant to the United States Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the case may berules and regulations promulgated thereunder (the “HSR Act”), of and (B) as promptly as reasonably practicable and advisable, all other necessary registrations, declarations, notices and filings relating to the Transactions with other Governmental Entities under any material communication from other Antitrust Law with respect to the Transactions. Each party hereto agrees (x) not to extend any waiting period under the HSR Act or any other Antitrust Law or enter into any agreement with any Governmental Entity regarding any to delay the consummation of the transactions contemplated by this AgreementTransactions, except with the prior written consent of the other parties which consent shall not be unreasonably withheld, conditioned or delayed, (y) to respond to any inquiries received and supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Antitrust Law and (z) to take such actions as are necessary or advisable to obtain all requisite approvals, clearances and authorizations of any Governmental Entity and cause the expiration or early termination of the applicable waiting periods under the HSR Act and any other Antitrust Law as promptly as reasonably practicable. If the Public Company, on the one hand, and the Stockholder or Parent, Merger Sub, or Second Merger SubPrivate Company, on the other hand, shall be equally responsible for paying all filing fees under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions. Notwithstanding anything in this Agreement to the contrary, the Stockholder shall, on behalf of the parties, control and lead all communications and strategy relating to HSR Act and any related litigation matters, subject to good faith consultations with Public Company with respect to any discussion related to the Transaction under the HSR Act. Each party hereto shall promptly notify the other party hereto of any communication it or any of its representatives receives a request for additional information or documentary material from any Governmental Entity with respect relating to the transactions contemplated by matters that are the subject of this AgreementAgreement and permit the other party hereto to review in advance and consider in good faith the
(b) From and after the date hereof and prior to the Closing, then it each of the parties shall use promptly (i) give (or shall cause their respective Subsidiaries to give) any notices to third parties, other than Governmental Entities, that are required in connection with the Transactions or are necessary to consummate the Transactions, and (ii) use, and cause their respective Subsidiaries to use, their respective reasonable best efforts to makeobtain any consents from third parties, or cause to be madeother than Governmental Entities, 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, 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 that are required in connection with the transactions contemplated by this Agreement. Neither Parent nor Transactions or are necessary to consummate the Company shall commit to or agree Transactions (or permit any of their respective Subsidiaries to commit to or agreeeach, a “Third Party Consent”), which are set forth on Section 6.6(b) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the Public Company Disclosure Schedule and Section 6.6(b) of the Private Company Disclosure Schedule, respectively. Each party shall (i) keep the other party reasonably informed of the status and progress thereon and (such consent ii) promptly notify the other party if it in good faith believes a Third Party Consent may not to be unreasonably withheldobtained, conditionedand in any event, not more than two (2) Business Days after receipt of any notice or delayed)indication that a Third Party Consent may not be obtained.
(bc) In Assuming the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation receipt of the transactions contemplated by this AgreementPublic Company Stockholder Approval, Public Company agrees to file the Public Company Charter Amendment in accordance with the DGCL prior to the Closing.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, includingincluding using reasonable efforts to accomplish the following: (i) the taking of all reasonable acts necessary to cause the conditions to Closing to be satisfied as promptly as practicable, (ii) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, by any Governmental Entities; Entity, (iiiii) the obtaining of all necessary material consents 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 seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers Merger and the other transactions contemplated by, and to fully carry out the purposes of of, this Agreement. The Company In connection with and Parent shallwithout limiting the foregoing, subject ITG, SCI and their respective Boards of Directors shall (1) take all action reasonably necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable Lawto this Agreement, 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 information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Merger or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the other transactions contemplated by this Agreement and (2) if any state takeover statute or similar statute becomes applicable to this Agreement. If , the Company, on the one hand, Merger or Parent, Merger Sub, or Second Merger Sub, on the any 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 take all action reasonably necessary to make, or cause to be made, as soon as reasonably practicable ensure that the Merger 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, 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 Agreement may be consummated as promptly as practicable on the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, or any the Merger and the other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and Party shall cause its Subsidiaries 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 in doing, do all things necessary, proper, proper or advisable in order to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this AgreementAgreement and the Escrow Agreement (including satisfaction, including: (i) but not waiver, of the obtaining of all necessary Permits, waiversconditions set forth in Article III). NII and the Buyers agree, and actions or nonactions from Governmental Entities NII, prior to the Closing, and the making Buyers, after the Closing, agree to cause the Company Group and each of all necessary registrations its Subsidiaries, to execute and filings (including filings with Governmental Entities) deliver such other documents, certificates, agreements and the taking of all steps other writings and to take such other reasonable actions as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 information that may be reasonably required desirable in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party consummate or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of implement expeditiously the transactions contemplated by this Agreement. If the CompanyIPCo shall execute and deliver such other documents, on the one handcertificates, agreements and other writings and to take such other reasonable actions as may be necessary or Parent, Merger Sub, desirable in order to consummate or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity with respect to implement expeditiously the transactions contemplated by this AgreementAgreement related to the VFR Patent Assets. At the Closing, then it the applicable Parties shall use reasonable best efforts to make, or cause execute and deliver the other agreements and instruments contemplated hereby to be made, as soon as reasonably practicable executed and after consultation with delivered at the 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)Closing.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by For purposes of this Agreement, the “reasonable best efforts” of a Party shall not require such Party or any other agreement contemplated herebyof its Subsidiaries, Affiliates or representatives to commence any litigation or arbitration proceeding, to waive or surrender any right, to modify any agreement, to offer or grant any accommodation or concession (financial or otherwise) to any third party or to otherwise suffer any detriment, to obtain any consent required for the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement, to waive or forego any right, remedy or condition hereunder or, in the case of the Sellers, to provide financing to the Buyers for the consummation of the transactions contemplated hereby.
(c) Without limiting the foregoing, (i) each Party shall cooperate with each other in connection with the merger control clearance contemplated by Section 3.1(a), (ii) in connection with such merger control clearance, the Sellers shall use commercially reasonable efforts to, and shall cause the Company Group to use commercially reasonable efforts to, promptly supply all information requested by the Federal Antimonopoly Service of Russia or reasonably requested by the Buyer, both prior to and after the making of the filings in connection therewith, and (iii) the Buyers shall use their commercially reasonable efforts to make the necessary filings in connection therewith by no later than June 2, 2017 (assuming that the Sellers shall have complied with their obligations under the immediately preceding clauses (i) and (ii) and shall have provided the necessary information for such filings to the Buyers’ counsel in Russia no later than May 31, 2017).
Appears in 1 contract
Reasonable Best Efforts. (a) Upon From the terms and subject to the conditions set forth in date of this Agreement (including those contained until the Closing or the earlier termination of this Agreement in this Section 5.09)accordance with its terms, each of the parties hereto shall, and Parties 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 Parties in doing, all things necessary, proper, proper or advisable to consummate and make effective, and as promptly as practicable prior to satisfy all conditions to, in the most expeditious manner practicableTermination Date, the transactions contemplated by Transactions in accordance with the terms of this Agreement and the Tender and Support Agreement, including: (i1) the taking of all acts necessary to cause the conditions to the Offer and the conditions to the Merger to each be satisfied as promptly as practicable; (2) the obtaining of all necessary Permitsactions or nonactions, waivers, consents and actions or nonactions approvals from Governmental Entities Authorities and the making of all necessary registrations registrations, notices and filings (including filings with Governmental EntitiesAuthorities) 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 EntitiesAuthority; (ii3) the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation law that may be asserted by any Governmental Authority with respect to any aspect of the Transactions so as to enable the Closing to occur as soon as reasonably possible; (4) the obtaining of all necessary material consents consents, approvals or waivers from other third parties, including any such consents, approvals or waivers required in connection with any divestiture; (5) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or delaying, preventing or restraining the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any Governmental Authority vacated, overturned or reversed, including by vigorously pursuing all available avenues of administrative and judicial appeal; and (iii6) the execution and delivery of any additional instruments necessary to consummate the Mergers Transactions and to fully carry out the purposes of this Agreement and the Tender and Support Agreement. The ; provided, however, that neither the Company and Parent shall, subject nor any of its Subsidiaries shall commit 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 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 parties hereto, as the case may be, payment of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Companyfee, on the one hand, penalty or Parent, Merger Sub, or Second 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 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, 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 consideration in connection with the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit obtaining any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, consent without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)Parent.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms The Parties shall cooperate with each other and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, and shall cause its each of their respective Subsidiaries or Representatives to, as the case may be, (i) promptly prepare and file all Filings with Governmental Entities that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement (including the Merger); and (ii) use its reasonable best efforts promptly to (A) obtain all Regulatory Approvals of all Governmental Entities, and to comply with the terms and conditions thereof, including (1) consulting and cooperating with the other Party in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of such Party in connection with proceedings relating to or arising out of such transactions; (2) providing the other Party prior notice of any proposed substantive communication, or any proposed understanding, undertaking or agreement, with any Governmental Entity relating to such transactions or any investigations or other inquiries relating thereto, and not participating independently in any meeting, engage in any such substantive communication or furthering any such understanding, undertaking or agreement without giving the other Party prior notice thereof and, unless prohibited by such Governmental Entity, a reasonable opportunity to participate therein; and (3) keeping the other Party fully apprised of the status of matters relating to completion of such transactions; and (B) take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the all other parties in doing, all things necessary, proper, proper or advisable under applicable Law or otherwise to consummate and make effective, and to satisfy all conditions to, effective the transactions contemplated by this Agreement in the most expeditious manner practicablepracticable (and, in any event, by no later than the transactions contemplated by End Date). Each Party shall furnish all information reasonably required for any Filing to be made pursuant to this Agreement, including: (i) Section 6.2 and shall have the obtaining of all necessary Permits, waiversright to review in advance, and actions or nonactions from Governmental Entities and each will consult the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver fromother on, or to avoid an action or proceeding by, any Governmental Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, in each case subject to applicable LawLaws relating to the confidentiality of information, promptly: (A) cooperate and coordinate with the other in the taking all of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order relating to effectuate the taking of such actions. Each party hereto shall promptly inform the other party Party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one handits Subsidiaries or Representatives, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity with respect otherwise relating to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to makethat appears in any such Filing made with, or cause to be madeother written materials submitted to, 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In furtherance and not in limitation of the event that foregoing, each Party shall, and shall cause its respective Subsidiaries to, take any administrative or judicial action or proceeding is instituted and all actions to (or threatened to be institutedi) by a Governmental Entity or private party challenging avoid the Mergers or any other transaction contemplated by this Agreemententry of, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversedreversed or overturned, or overturned any OrderJudgment, whether temporary, preliminary, preliminary or permanent, that is in effect would restrain, prevent or delay the Closing, including vigorously defending any Proceedings, whether judicial or administrative, challenging this Agreement or the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed, and that prohibits(ii) eliminate each and every impediment under any applicable Law so as to enable the Closing to occur as soon as possible, preventsincluding proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or restricts otherwise, the licensing or disposition of businesses or assets of Parent, the Company or their respective Subsidiaries or otherwise taking or committing to take actions that limit Parent's or its Subsidiaries' freedom of action with respect to, or their ability to retain, any of their respective businesses or assets or those of the Company or its Subsidiaries, in each case, as may be required in order to avoid the entry of, or to effect the dissolution or lift of, any injunction, temporary restraining order, or other order in any Proceeding, which would otherwise have the effect of preventing or delaying the consummation of the transactions contemplated by this Agreement. No Party shall consent to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the request of any Governmental Entity without the consent of the other Parties to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (China TransInfo Technology Corp.)
Reasonable Best Efforts. (a) Upon the terms Cameron and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, and Schlumberger shall cause its Subsidiaries to, use its their reasonable best efforts to take, or cause to be taken, all actions, other actions and to do, or to cause to be done, all other things necessary and proper:
(i) to assist ensure that all of the conditions to the obligations of Cameron and cooperate with Schlumberger contained in Section 3.10(c) are satisfied on a timely basis, and in any event prior to the other parties in doing, all things necessary, proper, or advisable Outside Date;
(ii) to otherwise consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and hereby;
(iii) the execution to avoid, remove and delivery of eliminate each and every impediment or objection under any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 information Applicable Law that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from asserted by any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity Authority with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to make, hereby that could have the effect of materially delaying or cause to be made, as soon as reasonably practicable and after consultation with preventing the 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 consummation of any filing made thereto in connection with the transactions contemplated hereby or that could make the consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful;
(iv) to defend all lawsuits and other proceedings by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) with before any Governmental Entity to stay, toll, Authority or extend by any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging this Agreement or the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement, and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action under any Antitrust Laws that would prevent, prohibit, or delay the consummation of the transactions contemplated hereby; and
(v) to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Outside Date).
(b) Notwithstanding anything in this Agreement to the contrary, in no event wxxx Xxxxxxx or Schlumberger be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture, to accept any operational restriction, or take any other action where, as a result of such proposal, action, or agreement, Cameron, Schlumberger, US Venture Entity, Non-U.S. Venture Entity, Lux Venture Entity or their respective subsidiaries or Affiliates would be foreclosed, precluded, or prohibited from, or in any way limited in, producing, operating, marketing, selling, offering for sale, deriving any revenue from, or otherwise owning the assets (including Intellectual Property assets or licenses), categories of assets, subsidiaries, Affiliates or the Cameron Subsea Business or the Schlumberger Subsea Business that are currently utilized to provide the products and services specified in Exhibit 6.3(b).
(c) Subject to Section 6.3(b), reasonable best efforts of Cameron and Schlumberger specified in Section 6.3(a) shall include the following steps to eliminate any objection or impediment by any Governmental Authority that would prevent, prohibit or delay the consummation of the transaction:
(i) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise disposing of, assets (including Intellectual Property assets or licenses), categories of assets, subsidiaries, Affiliates or the Cameron Subsea Business or the Schlumberger Subsea Business; and
(ii) conducting the businesses of the Cameron Subsea Business or the Schlumberger Subsea Business in a specified manner; provided, however, that in no event shall Cameron or Schlumberger be required to sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of, assets (including Intellectual Property assets or licenses), categories of assets, subsidiaries, Affiliates of Cameron or Schlumberger other than the Cameron Subsea Business or the Schlumberger Subsea Business. In the event that Cameron, Schlumberger or any of their respective Affiliates is required to sell or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of, any assets of the Cameron Subsea Business or the Schlumberger Subsea Business, any proceeds from such sale or disposal shall be contributed to the Venture Entities at Closing.
(d) Notwithstanding anything in this Agreement to the contrary, Cameron and Schlumberger shall each have the right, but not the obligation, to oppose by refusing to consent to, through litigation or otherwise any request, attempt or demand by any Governmental Authority or other person for any divestiture, hold separate condition or any other restriction with respect to any assets, businesses or product lines of either Cameron or Schlumberger. In the event Cameron or Schlumberger exercises its right to oppose through litigation, including any appeals, a request, attempt or demand by any Governmental Authority or other person as provided in the preceding sentence, and (i) such proceedings conclude prior to the Outside Date with a decree, injunction or order restricting or prohibiting the transaction or (ii) no decree, order or injunction has been issued in such proceedings prior to the Outside Date, then Cameron or Schlumberger, as the case may be, shall take such actions, in a timely manner, as are necessary to achieve the clearance or approval of the Governmental Authority or other person prior to the Outside Date, provided that this obligation is subject to and does not modify Section 6.3(b).
Appears in 1 contract
Samples: Master Formation Agreement (Cameron International Corp)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)and applicable Law, each of the parties hereto shall, shall act in good faith 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 in doing, all things necessary, proper, proper or advisable to consummate and make effectiveeffective the transactions contemplated by this Agreement as soon as practicable. Without limiting the foregoing, the parties as to (i) and (ii) below, and Seller as to satisfy (iii) shall, and shall cause their respective subsidiaries, and use reasonable best efforts to cause their (and their respective subsidiaries') directors, officers, employees, agents, attorneys, accountants and representatives, to (i) obtain all conditions 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 Governmental Entity (including promptly filing with the United States Federal Trade Commission (the "FTC") and the Antitrust Division of the United States Department of Justice (the "Department of Justice") pursuant to the HSR Act all requisite documents and notifications in the most expeditious manner practicable, connection with the transactions contemplated by this Agreement, including: (i) the obtaining of all or other person necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate in connection 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by this Agreement. If Agreement as soon as reasonably practicable; (ii) provide all such information concerning such party, its subsidiaries and its officers, directors, employees, partners and affiliates as may be necessary or reasonably requested in connection with any of the Company, on foregoing including (i) herein; and (iii) avoid the one handentry of, or Parenthave vacated or terminated, Merger Subany injunction, decree, order, or Second Merger Subjudgment that would restrain, on prevent, or delay the consummation of the transactions contemplated hereby.
(b) The Seller and the Buyer shall keep the other handreasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, receives a request for additional information including promptly furnishing the other with copies of notices or documentary material 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, 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries 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 in doing, all things necessary, properproper or advisable under applicable Laws promptly to consummate the Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use its reasonable best efforts to take, or advisable cause to consummate be taken, all other actions consistent with this Section 6.4 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable.
(b) Each of Parent and make effective, and to satisfy all conditions tothe Company shall, in connection with the most expeditious manner practicable, efforts referenced in Section 6.4(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this AgreementAgreement under the HSR Act or any other Antitrust Law (as hereunder defined), including: use its reasonable best efforts to (i) the obtaining of cooperate in all necessary Permitsrespects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, waivers, including any proceeding initiated by a private party; and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform keep the other party or parties hereto, as the case may be, informed in all material respects of any material communication from received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on hereby and (iii) permit the other handparty to review any material communication given by it to, receives a request for additional information and consult with each other in advance of any meeting or documentary material from conference with, the FTC, the DOJ or any such other Governmental Entity or, in connection with respect any proceeding by a private party, with any other person, and to the transactions contemplated extent permitted by this Agreementthe FTC, then it shall use reasonable best efforts to makethe DOJ or such other applicable Governmental Entity or other person, or cause to be made, as soon as reasonably practicable and after consultation with give the 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 party the opportunity to attend and participate in any meeting with any Governmental Entity in respect such meetings and conferences. For purposes 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby"Antitrust Law" means the Xxxxxxx Act, as amended, the Company shall cooperate in all respects with ParentXxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the EC Merger SubRegulation, and Second Merger Sub and shall use its reasonable best efforts all other Laws that are designed or intended to contest and resist any such action prohibit, restrict or proceeding and to have vacated, lifted, reversed, regulate actions having the purpose or overturned any Order, whether temporary, preliminary, effect of monopolization or permanent, that is in effect and that prohibits, prevents, restraint of trade or restricts consummation lessening of the transactions contemplated by this Agreementcompetition through merger or acquisition.
Appears in 1 contract
Samples: Merger Agreement (Interpublic Group of Companies Inc)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.096.6(b)), each of the parties hereto shallParties shall use, and shall cause its each of their respective Subsidiaries toto use, 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 Parties in doing, all things necessary, proper, proper or advisable under applicable Laws and regulations to consummate and make effective, effective as soon as reasonably practicable (and to satisfy all conditions to, in any event no later than the most expeditious manner practicable, End Date) the Merger and the other transactions contemplated by this Agreement, including: including (i) the obtaining of all necessary Permitsactions or nonactions, waivers, Consents, Orders, clearances and actions or nonactions approvals, including the Relevant Approvals, from Governmental Entities and the making of all necessary registrations registrations, and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval a Consent or waiver from, or to avoid an action or proceeding by, any Governmental Entities; Entity, (ii) subject to Section 6.10, the obtaining of all necessary material consents or waivers Consents from third parties; parties (other than Governmental Entities and provided that obtaining any such third-party Consents shall not be a condition to Parent’s or Merger Sub’s obligations to effect the Merger and the other transactions contemplated hereby), (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 (iiiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If .
(b) Subject to the terms and conditions of this Agreement and in furtherance and not in limitation of Section 6.6(a), each of the Company, on the one handParent and Merger Sub shall, and shall cause their respective Subsidiaries to, if applicable, (i) make their respective filings, or Parentdraft filings in case of a filing under the EUMR, Merger Suband thereafter make any other required submissions (x) under the HSR Act and the EUMR as promptly as practicable, and in any event within ten (10) days after the date hereof, and otherwise in accordance with any relevant filing requirements, and (y) in the applicable jurisdictions with respect to any other Relevant Approvals as promptly as practicable, and in any event within twenty (20) Business Days after the date hereof, and otherwise in accordance with any relevant filing requirements, (ii) cooperate with each other in good faith, including by supplying the other with information that may be required (subject to Section 6.6(c)), in (x) determining whether any additional filings are required to be made with, or Second Merger SubConsents, on permits, authorizations, clearances or approvals are required to be obtained from, any third parties or other Governmental Entities (including any non-U.S. jurisdiction in which the Company’s Subsidiaries are operating any business) 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 and (iii) use reasonable best efforts to take, or cause to be taken, all other handactions and do, receives a request for additional information or documentary material from cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the European Commission, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Entity may assert under Regulatory Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any applicable 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 (and in any event no later than the End Date). Notwithstanding anything to the contrary set forth in this Agreement, no party hereto shall be required (A) to propose, negotiate, commit to or effect the sale, divestiture or disposition of any assets or businesses of Parent or the Company (or any of their respective Subsidiaries) or hold separate any assets or businesses of Parent or the Company (or any of their respective Subsidiaries), except such assets or businesses as would not, individually or in the aggregate, reasonably be expected to be material relative to the Company and its Subsidiaries, taken as a whole, or (B) to otherwise take or commit to take actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, except such actions as would not, individually or in the aggregate, reasonably be expected to limit Parent’s or any its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or ability to retain, one or more of Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case, in a manner that would be material relative to the Company and its Subsidiaries, taken as a whole, in the case of each of clauses (A) and (B), in connection with obtaining any authorizations, Consents, clearances or approvals required to be obtained from Governmental Entities with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts Agreement or in order to makeavoid the entry of, or cause 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 restraining, preventing or materially delaying the Closing; provided that (1) the Company will not take any of the foregoing actions set forth in clauses (A) or (B) without prior written consent of Parent (in its sole discretion), (2) the Company (or its Subsidiaries) shall agree to take any of the foregoing actions set forth in clauses (A) or (B) at the written request of Parent, provided that the effectiveness of any such action is contingent in all respects upon the occurrence of the Effective Time and (3) none of Parent or its Subsidiaries shall be required to take any of the foregoing actions that may be required to be made, as soon as reasonably practicable taken pursuant to clauses (A) or (B) unless the effectiveness of such action is contingent in all respects upon the occurrence of the Effective Time.
(c) Parent and after consultation the Company shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications and any other partymaterial actions pursuant to this Section 6.6, an appropriate response in compliance with such requestincluding, and, if permitted by subject to applicable Law and by the instructions of any applicable Governmental Entity, provide by permitting counsel for the other party’s Party to review in advance, and consider in good faith the views of the other Party in connection with, any proposed substantive written communication to any Governmental Entity and by providing counsel for the other Party with advance notice copies of all filings and the opportunity to attend submissions made by such Party and participate in any meeting all substantive correspondence between such Party (and its advisors) with any Governmental Entity in respect of and any filing made thereto other information supplied by such Party and such Party’s advisors to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege concerns. Neither Parent nor and the Company shall commit (i) furnish to the other Party such information and assistance as such Party reasonably may request in connection with the preparation of any submissions to, or agree agency proceedings by, any Governmental Entities; (ii) promptly inform the other Party of any substantive communications with, and inquiries or permit requests for information from, such Governmental Entities in connection with the transactions contemplated by the Agreement and (iii) consult with the other Party in advance of any of their respective Subsidiaries to commit to meeting or agree) conference, whether in-Person or by telephone, with any such Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to staythe extent permitted by such applicable Governmental Entity or other Person, tollgive the other Party the opportunity to attend and participate in such meetings and conferences. Notwithstanding anything in this Agreement to the contrary, or extend any applicable waiting period under any applicable LawsParent shall, without the prior written consent on behalf of the other (such consent not Parties, control and lead all communications and strategy relating to be unreasonably withheldany Governmental Entity, conditioned, or delayed)subject to good faith consultations with the Company.
(bd) In Subject to the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by terms of this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use cause its reasonable best efforts Subsidiaries to contest cooperate with Parent by providing any notices or communications to employees or Governmental Entities which Parent determines are reasonably necessary in light of its transition 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 Agreementintegration plans.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject conditions of this Agreement, each of Acquiror and the Company shall, and shall cause their respective Subsidiaries to, use their reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger, to satisfy the conditions set forth in Article VIII hereof and, subject to the satisfaction of the conditions set forth in Article VIII hereof, consummate the transactions contemplated by this Agreement and (including those contained ii) to obtain (and to cooperate with the other party to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party which is required to be obtained by the Company or Acquiror or any of their respective Subsidiaries in connection with the Merger and the other transactions contemplated by this Section 5.09)Agreement.
(b) Subject to the terms and conditions of this Agreement, each of Acquiror and the parties hereto shall, and shall cause its Subsidiaries to, Company 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in as soon as practicable after the most expeditious manner practicabledate of this Agreement, the transactions contemplated by this Agreementhereby, including: including using reasonable best efforts to (i) modify or amend any contracts, plans or arrangements to which Acquiror or the obtaining of all Company is a party (to the extent permitted by the terms thereof) if necessary Permitsin order to satisfy the conditions to closing set forth in Article VIII hereof, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) lift or rescind any injunction or restraining order or other order adversely affecting the obtaining ability of all necessary material consents or waivers from third parties; the parties to consummate the transactions contemplated hereby and (iii) defend any litigation seeking to enjoin, prevent or delay the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreementhereby or seeking material damages.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, and shall cause its Subsidiaries to, The Parties will use its 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 in doing, all things necessary, proper, proper or advisable to cause each of the conditions in Article VII to be satisfied and consummate and make effective, and to satisfy all conditions to, effective in the most expeditious manner practicablepossible, and prior to the Outside Date, the transactions Transactions (and not have the Transactions unwound after the Effective Time), including (i) the preparation and filing of all forms, registrations and notices required to be filed with any Governmental Entity to consummate the Transactions, (ii) taking all actions necessary to obtain (and to cooperate with each other in obtaining) any consent, authorization, Order or approval of, or any exemption by, any Governmental Entity (which actions will include furnishing all information required under the HSR Act, and any other Antitrust Laws or FDI Laws listed in Section 7.1(b) of the Company Disclosure Letter and in connection with approvals of or filings required by any other Governmental Entity) to be obtained or made by the Parties or any of their respective Subsidiaries in connection with the Transactions or the taking of any action contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers Transactions and to fully carry out the purposes of this Agreement, and (iv) taking all actions reasonably necessary to avoid that the Transactions are unwound after the Effective Time. The Company Additionally, the Parties will not, will cause their Subsidiaries to not, and SDB and Parent shallwill cause SJL to not, subject take any action, or authorize or agree to take or make any commitment to take any action or enter into any Contract that would reasonably be expected to materially impede, materially interfere with, or materially delay the consummation of the Merger or the other Transactions, including (x) acquiring any other Person or business (other than pursuant to this Agreement) or any material assets or properties of any other Person (whether by merger, tender offer, consolidation, purchase of property or otherwise) or (y) making any material investment in any other Person or business either by purchase of stock or securities, contributions to capital, property transfers or purchase of assets or properties of any Person, except in each case of the foregoing clauses (x) or (y) for acquisitions or investments that would not reasonably be expected to materially impede, materially interfere with or materially delay the consummation of the Merger or the other Transactions. For purposes of this Section 6.3, Parent and SDB will cause SJL to take all actions that it would be required to take as though it were a Parent Party under this Agreement.
(b) The Parties will promptly consult with each other with respect to and, to the extent permitted by applicable Law, promptly: promptly provide each other any relevant information with respect to (A) cooperate and coordinate with the other and, in the taking case of correspondence, provide each other (or their counsel) copies of), and keep each other apprised of the actions contemplated status of, all filings made by clauses such Party with any Governmental Entity or any other information supplied (except with respect to any disclosure or communication that relates to a Takeover Proposal or a Change in Recommendation), by such Party to, or correspondence with, a Governmental Entity in connection with this Agreement and the Transactions; provided, however, that the Parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided under this Section 6.3 as “Outside Counsel Only Material.” Such materials designated “Outside Counsel Only Material” and the information contained therein will be given only to the outside antitrust or FDI counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the Party that provided the materials or its legal counsel. Anything to the contrary contained in this Section 6.3 notwithstanding, materials provided pursuant to this Section 6.3 may be redacted (i)) to remove references concerning the valuation of Parent, the Company and the Merger and other confidential information, (ii)) as necessary to comply with contractual arrangements, and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order as necessary to effectuate the taking of such actionsaddress reasonable privilege or personal privacy concerns. Each party hereto shall Party will promptly inform the other party or parties hereto, as the case may be, Parties of any material communication (excluding administrative, non-substantive communications) received by it from any Governmental Entity regarding any of the transactions contemplated by this AgreementTransactions. If the Company, on the one hand, any Party or Parent, Merger Sub, or Second Merger Sub, on the other hand, any Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this AgreementTransactions, then it shall such Party will use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and promptly and, to the extent permitted by Law, after consultation with the other partyParties and permitting counsel to the other Parties reasonable opportunity to review in advance, an appropriate response in compliance with to such request. Each Party agrees that it will not participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the performance of its obligations pursuant to this Section 6.3 unless it consults, in the case of the Company, with Parent, and in the case of a Parent Party, with the Company, in advance and, if permitted to the extent not prohibited by applicable Law and by any applicable such Governmental Entity, provide the gives such other party’s counsel with advance notice and Party the opportunity to attend and participate participate. Notwithstanding the foregoing, in the event of any dispute between the Parties relating to the strategy or appropriate course of action or content of any submission made in connection with obtaining any clearances under applicable Antitrust Laws and applicable FDI Laws with respect to the Transactions, the Parties will escalate such dispute to the chief executive officers of the Company and SDB for resolution. If such dispute is not resolved pursuant to the preceding sentence, the Company and the Parent shall jointly devise the strategy and direct all matters for obtaining clearances, approvals or waiting-period expirations under Antitrust Laws and applicable FDI Laws, including any filings, notifications, submissions and communication with or to any Governmental Entity in connection therewith. Notwithstanding anything to the contrary in this Section 6.3 or in any meeting other provision of this Agreement, the Parent Parties will consult with the Company prior to taking any material substantive position in any written submissions or, to the extent practicable, discussions with any Governmental Entity.
(c) The Parties will use their reasonable best efforts to file, as promptly as reasonably practicable, but in any event no later than 10 Business Days after the Agreement Date, notifications under the HSR Act, and the Parties will use their respective reasonable best efforts to file, as promptly as reasonably practicable, but in any event no later than the earlier of 30 Business Days after the Agreement Date or the date as required by applicable Law, any other filings and/or notifications under the Antitrust Laws and FDI Laws listed in Section 7.1(b) of the Company Disclosure Letter, and in each case, if applicable, requesting early termination of any waiting period with respect to the Transactions, and to file as soon as practicable any other applicable notifications or other forms and documentation necessary to obtain any consents, clearances or approvals under or in connection with any applicable Antitrust Law or applicable FDI Laws listed in Section 7.1(b) of the Company Disclosure Letter or in connection with the approval or authorization of or filings with any Governmental Entity in respect required to be obtained or made by the Parties or any of any filing made thereto their respective Affiliates in connection with the transactions Transactions or the taking of any action contemplated by this AgreementAgreement the failure of which to obtain or be made would result in the failure of a closing condition set forth in Article VII to be satisfied. Neither Parent nor The Parties will use their reasonable best efforts to respond, as promptly as practicable, to any inquiries and requests received from the Federal Trade Commission, the Antitrust Division of the Department of Justice, CFIUS, or any other Governmental Entity concerning applicable Antitrust Laws or FDI Laws for additional information or documentation. The Parties will use their reasonable best efforts to respond, as promptly as practicable, to all inquiries and requests for additional information and documentation received from any state Attorney General or any other Governmental Entity in connection with approvals or filings pursuant to the Antitrust Laws and FDI Laws listed in Section 7.1(b) of the Company shall commit Disclosure Letter or approvals of, or filings with, any other Governmental Entity required to be obtained or agree (made by the Parties or permit any of their respective Subsidiaries Affiliates in connection with the consummation of the Transactions or the taking of any action contemplated by this Agreement the failure of which to commit obtain or be made would result in the failure of a closing condition set forth in Article VII to be satisfied.
(d) The Parties will use their reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Transactions under applicable Antitrust Laws or agreeFDI Laws. Without limiting the foregoing provisions of this Section 6.3, in the event that the Parties receive a request for information or documentary material pursuant to the HSR Act (a “Second Request”), the Parties will use their respective reasonable best efforts to respond to such Second Request as promptly as practicable, and counsel for each of the Parties will closely cooperate during the entirety of any such Second Request review process. Further, and for purposes of clarity, the Parent Parties will not propose or consent to any voluntary extension of any statutory deadline or waiting period, or propose or consent to any voluntary delay of the Transactions, including not extending any waiting period under the HSR Act (by pull and refile, or otherwise) or any other Antitrust Laws or FDI Laws or enter into any agreement with any Governmental Entity not to stayconsummate the Merger, toll, or extend any applicable waiting period under any applicable Laws, without except with the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that Company. If any administrative or judicial action or proceeding Action is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging any of the Mergers Transactions as violative of the HSR Act, the Xxxxxxx Act, the Xxxxxxx Act, the Federal Trade Commission Act or any other transaction contemplated United States federal or state or foreign Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”) or otherwise challenged by this Agreement, or any other agreement contemplated herebyGovernmental Entity (excluding under any applicable FDI Laws), the Company shall Parties will cooperate in all respects with Parent, Merger Sub, each other and Second Merger Sub and shall use its their reasonable best efforts to vigorously contest and resist any such action or proceeding Action, and to have vacated, lifted, reversed, or overturned any Order, Order whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions Merger or any other Transactions, including by vigorously pursuing all available avenues of administrative and judicial appeal. The Parties will use their reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or clearances under the HSR Act or other applicable Antitrust Laws or applicable FDI Laws with respect to the Transactions as promptly as possible after the execution of this Agreement.
(e) Notwithstanding anything to the contrary set forth in this Agreement, the Parent Parties will, and will cause their controlled Affiliates and SJL to, take any and all actions required to obtain all required approvals under the HSR Act and other approvals under applicable Antitrust Laws and FDI Laws necessary to satisfy the conditions set forth in Article VII, including the proposal, negotiation and acceptance (including through Order, consent decree, settlement or otherwise) prior to the Outside Date of (i) any and all divestitures of their businesses or assets or, following the Closing, of the Company or any of its Subsidiaries, (ii) any agreement to hold any of their assets or, following the Closing, of the Company or any of its Subsidiaries separate, (iii) any agreement to license any portion of their business or assets or, following the Closing, of the Company or any of its Subsidiaries, (iv) any limitation to or modification of any of their businesses, services or operations or, following the Closing, of the Company or any of its Subsidiaries, and
(v) any other action (including any action that limits the freedom of action, ownership or control with respect to, or ability to retain or hold, any of their businesses, assets, product lines, properties or services or, following the Closing, of the Company or any of its Subsidiaries), in each case, as may be required by any applicable Governmental Entity in order to obtain approval for the Transactions prior to the Outside Date. Notwithstanding the provisions of this Section 6.3(e), neither any of the Parent Parties nor any of their respective Affiliates or SJL are required to commit to or effect (A) any sale, divestiture, lease, holding separate pending a sale or other transfer or disposal or (B) any other restriction or action contemplated by this AgreementSection 6.3(e) if:
(I) in the case of clause (A), such action would require the sale, divestiture, lease, holding separate pending a sale or other transfer or disposal of the Company’s and its Subsidiaries’ non-molecular assay business line, molecular reagent business line or immunological reagent business line or a sale or other transfer or disposal of any assets, properties, businesses or product lines of the Parent Parties or their respective Subsidiaries representing, in the aggregate, more than $100,000,000 of annual revenue generated during the fiscal year ended December 31, 2021; or
(II) in the case of clause (B), such restriction or action, individually or taken together with all sales, divestitures, leases, holding separate pending a sale, transfers, disposals and other restrictions and actions contemplated by this Section 6.3(e), in the aggregate would, or would reasonably be expected to, have a materially adverse effect on the Company and its Subsidiaries, taken as a whole, or the Parent Parties and their Subsidiaries, taken as a whole. Notwithstanding the provisions of this Section 6.3, neither a Parent Party nor the Company will be required to agree to any term or take any action in connection with receipt of consents under applicable Antitrust Laws or FDI Laws that is not conditioned upon consummation of the Merger.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Except as otherwise provided under Section 5.2 or Section 5.3, upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of Parent, Merger Sub and the parties hereto shall, and Company 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 in doing, all things actions that are necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and each of the other transactions contemplated by this Agreement, including: including using reasonable best efforts to (i) cause each of the obtaining conditions to the Merger set forth in Article VII to be satisfied as promptly as practicable after the date of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entitiesthis Agreement; (ii) subject to Section 6.3, obtain, as promptly as practicable after the obtaining date of this Agreement, and maintain all necessary material consents actions or waivers non-actions and Consents from third parties; Governmental Authorities and (iii) the execution make all necessary registrations, declarations and delivery of any additional instruments filings with Governmental Authorities, that are necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), and Merger; (iii) immediately above; resist, contest, appeal and (B) supply the other with remove any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 make, or cause to be made, as soon as reasonably practicable Legal Proceeding 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, restricts or restricts restrains the consummation of the transactions contemplated by this Agreement (including any Legal Proceeding or Order in connection with the matters contemplated by Section 6.3), (iv) upon the written request of Parent or Merger Sub, obtain all necessary or appropriate Consents under any Material Contracts to which the Company is a party in connection with this Agreement and the consummation of the transactions contemplated hereby and (v) reasonably cooperate with the other party or parties with respect to any of the foregoing. In addition to the foregoing, except as otherwise provided under Section 5.2 or Section 5.3, neither Parent or Merger Sub, on the one hand, nor the Company, on the other hand, shall take any action, or fail to take any action, that is intended to, or has (or would reasonably be expected to have) the effect of, preventing, materially impairing, materially delaying or otherwise materially adversely affecting the consummation of the Merger or the ability of such party to fully perform its obligations under this Agreement. Notwithstanding anything to the contrary herein, the Company shall not be required prior to the Effective Time to pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration (including increased rent or other similar payments or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (including a guaranty) or otherwise assume or incur or agree to assume or incur any Liability that is not conditioned upon the consummation of the Merger, to obtain any Consent of any Person (including any Governmental Authority) under any Contract.
(b) Parent agrees, on behalf of itself and its Affiliates, that, between the date of this Agreement and the Effective Time, Parent shall not, and shall cause its Affiliates not to, directly or indirectly, (i) acquire or purchase (or agree to acquire or purchase), by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, if doing so would or would reasonably be expected to (A) result in any material delay in obtaining, or materially increase the risk of not obtaining, any Consent of any Governmental Authority required in connection with the transactions contemplated hereby (including the Merger) or (B) restrict, prevent, prohibit, impede or materially delay the consummation of the Merger or any of the other transactions contemplated by this Agreement, or (ii) take or agree to take any other action (including entering into agreements with respect to any equity investments, joint ventures, acquisitions, mergers, consolidations or business combinations) which would or would reasonably be expected to (X) result in any material delay in obtaining, or materially increase the risk of not obtaining, any Consent of any Governmental Authority required in connection with the transactions contemplated hereby (including the Merger) or (Y) restrict, prevent, prohibit, impede or materially delay the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in of this Agreement (including those contained and in this Section 5.09)accordance with applicable Law, each of the parties hereto Party shall, and shall cause its Subsidiaries Affiliates to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions set forth in Annex A and Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable. The terms of this Section 6.3 shall not limit the rights of the Company set forth in Section 6.2.
(b) Without limiting the generality of Section 6.3(a), each Party shall use its reasonable best efforts to (i) take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws and regulations or required to be taken by any Governmental Entity or otherwise to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this AgreementAgreement as promptly as practicable, including: (iii) the obtaining of all necessary Permitsobtain from any Governmental Entity any consents, licenses, permits, waivers, and actions approvals, authorizations or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may orders required to be necessary to obtain an approval obtained or waiver frommade by any Party, or to avoid an action or proceeding by, by any Governmental Entities; (ii) Entity, in connection with the obtaining of all necessary material consents or waivers from third parties; and (iii) the authorization, execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking consummation of the actions Merger and the transactions contemplated by clauses (i)hereby, (ii), and (iii) immediately above; defend and (B) supply contest any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by this Agreement. If the Company, on the one hand, including seeking to have any stay or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from temporary restraining order entered by any Governmental Entity vacated or reversed, and (iv) make, as promptly as practicable, appropriate filings under any applicable antitrust or anti-competition Law.
(c) Each Party shall cooperate to obtain all consents, approvals or waivers from, or take other actions with respect to the transactions contemplated by this Agreementto, then it shall use reasonable best efforts to make, third parties necessary or cause advisable 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, 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 obtained or taken in connection with the transactions contemplated by this Agreement. Neither .
(d) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, Parent nor shall promptly notify the Company Special Committee in writing and Parent and Acquisition Sub shall, and shall commit cause their Affiliates (including Xxxx X. Xxxxxxx, Xx.) to, use their commercially reasonable efforts to or agree arrange and obtain, as promptly as practicable, in replacement thereof, alternative financing (including from alternative sources) in an amount at least equal to the amount available under the Debt Commitment Letter (or permit any of their respective Subsidiaries a lesser amount if determined by Parent) not less favorable to commit the borrower than the terms and conditions set forth in the Debt Commitment Letter (“Substitute Financing”). Parent shall deliver to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent Special Committee true and complete copies of the other debt commitment letters providing for the Substitute Financing (such consent not to be unreasonably withheld, conditioned, or delayedthe “Substitute Financing Debt Commitment Letter”).
(be) In Prior to the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated herebyClosing, the Company shall cooperate in all respects with Parentuse reasonable efforts to provide, Merger Sub, and Second Merger Sub and shall use reasonable efforts to cause its Representatives to provide, in each case at Purchasers’ sole expense, such cooperation as may reasonably be requested by Purchasers that is customary and necessary in connection with arranging and obtaining any Debt Financing sought by Purchasers, including (in each case to the extent that the same is reasonably requested) with respect to (i) assisting in preparation for and participation in marketing efforts (including lender meetings, due diligence and drafting sessions, presentations, sessions with rating agencies and providing customary executed authorization and management representation letters and ratings agency engagement letters); (ii) providing on a timely basis to Purchasers reasonably requested financial and other pertinent information regarding the Company and any Company Subsidiary, including the Company’s unaudited consolidated balance sheet and the related statements of income and cash flows for each fiscal month within thirty (30) days following the end of each such fiscal month; (iii) taking such actions as are reasonably requested by Purchasers and the Debt Financing Sources to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing that are within its control; (iv) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including participation in due diligence sessions; (v) cooperating reasonably with the Debt Financing Sources’ due diligence and with any efforts to contest obtain guarantees from the Company and resist obtain and perfect security interests in the equity of the Company or any of its Subsidiaries intended to constitute collateral securing such action financing, with such cooperation occurring prior to or proceeding simultaneously with the Closing, but the execution of any guarantees or security arrangements not taking effect until the Closing, in each case, to the extent customary and reasonable; and (vi) to have vacatedthe extent applicable, liftedexecuting and delivering any definitive financing agreements relating to the Debt Financing (“Definitive Financing Agreements”), reversedsubject to the occurrence of the Closing, or overturned any Order, whether temporary, preliminary, or permanent, that is reasonably requested by Purchasers in effect and that prohibits, prevents, or restricts connection with the consummation of the transactions contemplated Debt Financing. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Debt Financing; provided that, such logos are used solely for purposes of obtaining the Debt Financing and not in a manner that is intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of any of them or their marks. Notwithstanding the foregoing, (1) Purchasers shall ensure that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company (it being understood and agreed that the Company shall not be required to take any action that unreasonably interferes with its ongoing business or operations); (2) neither the Company nor its Subsidiaries shall be required to commit to take any action that (x) is not contingent upon the Closing, (y) would be effective prior to the Closing or (z) would encumber any assets of (i) the Company or (ii) any of the Company’s Subsidiaries prior to the Closing; and (3) neither the Company nor any of its Representatives shall, in connection with the Debt Financing (A) be required to take any action that would result in a violation of applicable Law or breach of any Contract or subject it to actual or potential liability, or (B) be required to be disclose or provide any information the disclosure of which, in the reasonable judgment of the Company, is restricted by Contract, applicable Law, order, is subject to attorney-client privilege or could result in the disclosure of any trade secrets of third parties or violate any obligation of the Company or its Subsidiaries with respect to confidentiality. Anything to the contrary herein notwithstanding, the Company shall not be in breach of its obligations pursuant to this AgreementSection 6.3 unless the failure of the Company to comply with any obligation hereunder was primarily the result of any action taken or omitted to be taken by or at the direction of the Special Committee or any of its Representatives (other than such Representatives who are also members or Representatives of the Purchaser Group and Management or whose actions or omissions from acting occurred at the direction of the Purchaser Group and Management or any of its Representatives).
Appears in 1 contract
Samples: Merger Agreement (Calamos Asset Management, Inc. /DE/)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties 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 in doing, all things necessary, proper, 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: including (i) the obtaining of all necessary Permitsmaterial permits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary material registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the 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 Mergers Merger and to fully carry out the purposes of this Agreement; provided that, in each case, the parties hereto agree that no party to this Agreement shall take any actions pursuant to the foregoing clauses with respect to Governmental Entities without the consent of the other parties hereto. 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: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, withheld or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 5.09(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 5.09(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 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 instituted) by a Governmental Entity or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of the Company shall cooperate in all respects with ParentCompany, Merger Sub, Parent and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.09, if any objections are asserted or if any suit is instituted (or threatened to be instituted) by a Governmental Antitrust Authority 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, Merger 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, in the case of Parent and Merger Sub, but not the Company, by (i) selling, holding separate, licensing or otherwise disposing of any assets of the Company, Parent, Merger Sub or any of their respective Subsidiaries or conducting its business in a manner which would resolve such objections or suits, (ii) agreeing to sell, hold separate or otherwise dispose of any assets of the Company, Parent, Merger Sub or any of their respective Subsidiaries or conduct its business in a manner which would resolve such objections or suits or (iii) permitting the sale, holding separate or other disposition of, any assets of the Company, Parent, Merger Sub or any of their respective 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 assets of the Company or its Subsidiaries shall be conditioned upon the consummation of the Merger; and provided, further, that notwithstanding anything to the contrary in this Section 5.09 or any other provision of this Agreement, neither the Company nor Parent shall be required in order to resolve any objections asserted under Antitrust Laws with respect to the transactions contemplated by this Agreement to commit to any obligation or action that is reasonably likely to be materially adverse to the oil country tubular goods businesses of the Company, the Parent and their respective Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (Edgen Group Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, to the transactions contemplated by this AgreementAgreement as promptly as reasonably practicable (and in no event later than the Outside Date), including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; and (ii) the 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 Mergers Merger and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), ) and (ii), and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, Parent or Second 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 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, 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 party hereto shall commit to participate in any meeting or agree (or permit any of their respective Subsidiaries to commit to or agree) teleconference with any Governmental Entity where material issues are reasonably expected to staybe discussed in connection with this Agreement and the transaction contemplated hereby unless, tollso long as reasonably practicable and permitted by applicable Law, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Each party hereto shall furnish the other party with copies of all material correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity with respect to this Agreement and the transaction contemplated hereby, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity; provided, however, that each party may, as it deems advisable and necessary, reasonably designate any competitively sensitive materials provided pursuant to this Section 5.09 as “outside counsel only,” and provided further that materials may be redacted (i) to remove references concerning the valuation of Company or Parent and the transaction contemplated hereby or other confidential information, (ii) as necessary to comply with contractual arrangements, and (iii) as necessary to address reasonable privilege or confidentiality concerns. The parties shall discuss in advance the strategy and timing for obtaining any clearances required under Antitrust Laws; provided, however, that (but, for the avoidance of doubt, subject to the Company’s consultation and participation rights described above,Section 5.05(b), Section 5.06(b) and Section 5.09(d)), Parent shall, on behalf of the parties, (but only to the extent relating to the matters that occur from and after the Closing or that would be conditioned on the occurrence of the Closing) devise and lead all meetings, communications, negotiations and strategy (including defense strategy) for dealing with any Governmental Entity in connection with obtaining all consents, approvals, clearances and other authorizations of any Governmental Entity set forth on Section 6.01 of the Company Disclosure Letter, satisfying the conditions set forth in Section 6.01(b), and any matters that otherwise relate to Antitrust Laws in connection with this Agreement or the transactions contemplated hereby. For the avoidance of doubt, nothing in the foregoing sentence shall (x) give Parent the right to control or lead on matters unrelated to this Agreement or unrelated to the consummation of the transactions contemplated hereby, or extend (y) require the Company to take or agree to take any applicable waiting period under action (including any applicable Lawsdisposition, licensing, holding separate or conduct remedy) or to limit or agree to limit the Company’s freedom of action in any respect unless, as set forth in Section 5.09(d) below, the effectiveness of any such agreement, action or limitation is conditioned upon (and such action or limitation takes effect following) the Closing. Notwithstanding anything herein to the contrary, (A) Parent’s obligations to take or cause to take any actions described in this Section 5.09, shall be subject, in each case, to the right of Parent, in Parent’s good faith reasonable discretion, to take reasonable periods of time in order to advocate and negotiate with Governmental Entities with respect to such actions, and (B) subject to the Company’s consultation and participation rights described above, if there are multiple alternative actions or remedies which may result in obtaining any consents, approvals, clearances and other authorizations of any Governmental Entity set forth on Section 6.01 of the Company Disclosure Letter and satisfying the conditions set forth in Section 6.01(b), then Parent shall have sole discretion over which alternative actions or remedies to propose (to the extent that no such remedies take effect prior to the Closing without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayedCompany’s consent).
(b) Without limiting the generality of the undertakings pursuant toSection 5.09(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 as promptly as reasonably practicable (and in no event later than the Outside Date), 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 reasonably 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 fifteen (15) Business Days of the date of this Agreement) and thereafter to respond as promptly as reasonably 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 5.09(d) hereof, use their reasonable best efforts to promptly take such actions as are necessary or advisable to obtain approval of the consummation of the transactions contemplated by this Agreement by any Governmental Entity or expiration of applicable waiting periods as promptly as reasonably practicable (and in no event later than the Outside Date).
(c) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of the Company shall and Parent shall, subject to Section 5.09(d), cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Orderdecree, judgment, injunction or other order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated hereby from occurring prior to the Outside Date.
(d) Without limiting the generality of Parent’s undertakings pursuant to this Section 5.09, Parent agrees to use its reasonable best efforts including by promptly taking any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity or any other Person so as to enable the parties to consummate the transactions contemplated by this AgreementAgreement as promptly as reasonably practicable (and in no event later than the Outside Date), including proposing, negotiating, committing to and effecting, by consent decree, order, hold separate orders, or otherwise the sale, divestiture or disposition of any of its assets, properties or businesses or of the assets, properties or businesses to be acquired by it pursuant to this Agreement as are required to be divested 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 materially delaying or preventing the consummation of the transactions contemplated by this Agreement from occurring prior to the Outside Date. In addition, Parent shall use its reasonable best efforts including by defending through Legal Action on the merits any claim asserted in any Governmental Entity by any party in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the consummation of the Closing from occurring prior to the Outside Date. Notwithstanding anything herein to the contrary, (i) the Company shall not take or agree to take any actions described in this Section 5.09(d) without the prior written approval of Parent and (ii) neither Parent nor the Company shall be required to take or agree to take any action (including any disposition, licensing, holding separate or conduct remedy) or to limit or agree to limit Parent’s freedom of action or that of the Company or of any Subsidiary in any respect unless (x) such agreement, action or limitation would not reasonably be expected to, individually or in the aggregate, result in a Substantial Detriment and (y) the effectiveness of any such agreement, action or limitation is conditioned upon the Closing. “Substantial Detriment” means a material adverse effect on the Company and its Subsidiaries, taken as a whole, Parent, or the pro forma Parent (together with the Company and its Subsidiaries) (but assuming for this purpose that Parent or the pro forma Parent is the size, and has the aggregate financial and operating metrics, of the Company and its Subsidiaries, taken as a whole).
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09), each Each of the parties hereto shall, and shall cause its Subsidiaries to, (other than the Stockholders Representative) 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 in doing, all things necessary, proper, appropriate or advisable desirable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including: (i) including the obtaining satisfaction of all necessary Permits, waiversthe respective conditions set forth in Article VI, and actions or nonactions from Governmental Entities including to execute and the making of all necessary registrations deliver such other instruments and filings (including filings with Governmental Entities) do and the taking of all steps perform such other acts and things as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; (ii) reasonably desirable for effecting completely the obtaining consummation of all necessary material consents or waivers from third parties; the Merger and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed.
(b) The parties (other than the Stockholders Representative) shall, or shall make all filings and notifications and other submissions with respect to this Agreement and the transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, and any successor to such statute, rules or regulations (the “HSR Act”) and any other applicable antitrust Laws and, in any event, to each file the Notification and Report Form under the HSR Act, if required, no more than ten (10) Business Days after the Agreement Date. To the extent permitted by applicable Law, each of the Company and Parent shall promptly inform the other of any material communication between the Company or Parent (as applicable) and any Governmental Entity regarding the transactions contemplated by this Agreement (and if in writing, furnish the other party with a copy of such communication). If the Company, on the one hand, Company or Parent, Merger Sub, Parent or Second Merger Sub, on the other hand, receives a any affiliate thereof shall receive any formal or informal request for additional information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then it the Company or Parent (as applicable) shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other partypracticable, an appropriate a response in compliance with such request. Without limiting the generality or effect of Section 5.9(a), and, if to the extent permitted by applicable Law and except as may be prohibited by any applicable Governmental Entity, provide the parties hereto (other than the Stockholder Representative) shall (i) permit the other party’s counsel to review and discuss in advance, and consider in good faith the view of the other in connection with, any proposed written or oral communication with any Governmental Entity relating to the transaction contemplated by this Agreement; (ii) not participate in any substantive meeting or conference have any substantive communication with any Governmental Entity unless it has given the other party a reasonable opportunity to consult with it in advance notice and and, to the extent permitted by such Governmental Entity, gives the other the opportunity to attend and participate in therein; (iii) furnish the other party’s outside legal counsel with copies of all filings and communications between it and any meeting with any such Governmental Entity in with respect of any filing made thereto in connection with to this Agreement and the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit hereby; provided that such material (A) may be redacted as necessary (1) to or agree comply with contractual arrangements, (or permit any of their respective Subsidiaries 2) to commit to or agree) with any Governmental Entity to stay, tolladdress legal privilege concerns, or extend any applicable waiting period under any applicable Laws(3) to remove references concerning the valuation of the parties or (B) designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the prior advance written consent of the party providing such materials; and (iv) furnish the other (party’s outside legal counsel with such consent not necessary information and reasonable assistance as the other party’s outside legal counsel may reasonably request in connection with its preparation of necessary submissions of information to be unreasonably withheld, conditioned, or delayed)any such Governmental Entity.
(bc) In Notwithstanding the event foregoing, nothing in this Section 5.9 or otherwise in this Agreement shall require Parent: (i) to take any action that would prohibit or limit in any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreementmaterial respect, or place any other agreement contemplated herebymaterial conditions on, the Company shall cooperate in all respects with ownership or operation by Parent of a majority of the business, assets, Intellectual Property Rights, categories of assets, relationships, contractual rights, obligations or arrangements of Parent, Merger Subor compel Parent to divest, and Second Merger Sub and shall use dispose of, hold separate or license a majority of the business, assets, Intellectual Property Rights, categories of assets, relationships, contractual rights, obligations or arrangements of Parent; or (ii) to propose or agree to or effect a divestiture of a material portion of its reasonable best efforts to contest and resist any such action business or proceeding and to have vacated, lifted, reversedassets, or overturned any Order, whether temporary, preliminary, to hold separate a material portion of its business or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreementassets.
Appears in 1 contract
Samples: Merger Agreement (Cardlytics, Inc.)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and Party shall cause its Subsidiaries to, use its reasonable best efforts efforts, at its own cost and expense, to (i) 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 in doing, all things necessary, proper, proper or advisable under applicable Law or otherwise to promptly consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of obtain all necessary material consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii)Consents of, and (iii) immediately above; give all notices to and (B) supply the make all filings with, all Governmental Authorities and other with any information third parties that may be reasonably required in order to effectuate or become necessary for the taking performance of such actions. Each party hereto shall promptly inform its obligations under this Agreement and the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by hereby (other than Consents or notices from or to third parties that are not material to Raindance) (the "Required Consents"), (iii) lift or rescind any injunction or restraining order or other Order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby, and (iv) fulfill all conditions to the obligations of such parties under this Agreement. If Each Party shall cooperate fully with the Companyother Parties in promptly seeking to obtain all such Consents, on giving such notices, and making such filings. Notwithstanding the one handforegoing, nothing contained in this Section 4.5 shall preclude any Party from exercising its rights under this Agreement, including a Party's right to terminate this Agreement in accordance with Section 6.1.
(b) In furtherance and not in limitation of the terms of Section 4.5(a), to the extent required by applicable Law, each of West and Raindance shall file, or Parentcause to be filed, Merger Sub, or Second Merger Sub, on a Notification and Report Form pursuant to the other hand, receives a request for additional information or documentary material from any Governmental Entity HSR Act with respect to the transactions contemplated by hereby as promptly as practicable after the date of this Agreement, then it shall use reasonable best efforts to make, or cause to supply promptly any additional information and documentary material that may 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 requested by any applicable Governmental Entity, provide Authority (including the other party’s counsel with advance notice Antitrust Division of the United States Department of Justice and the opportunity United States Federal Trade Commission) pursuant to attend the HSR Act, and participate in any meeting with any Governmental Entity in respect of any filing made thereto shall cooperate in connection with any filing under applicable antitrust Laws and in connection with resolving any investigation or other inquiry concerning the transactions contemplated by this Agreement. Neither Parent nor the Company shall commit to or agree (or permit any of their respective Subsidiaries to commit to or agree) with Agreement commenced by any Governmental Entity to stayAuthority, tollincluding the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or extend the office of any applicable waiting period under state attorney general; provided, that West shall not be required to Consent to any applicable Laws, without the prior written consent of the divestiture or other (such consent not structural or conduct relief in order to be unreasonably withheld, conditioned, or delayed).
(b) obtain clearance from any Governmental Authority. In the event that any administrative legal, administrative, arbitral or judicial other proceeding, claim, suit or action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity Authority or private party challenging any of the Mergers transactions contemplated by this Agreement or in the event that any other transaction Governmental Authority shall otherwise object to any of the transactions contemplated by this Agreement, or any other agreement contemplated herebyeach of West, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and Raindance shall cooperate with each other and use its respective reasonable best efforts efforts: (A) to vigorously defend, contest and resist any such proceeding, claim, suit, action or proceeding challenge; and (B) to have vacated, lifted, reversed, reversed or overturned any Orderdecree, judgment, injunction or other order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement.
(c) To the extent permitted by Law, each Party will promptly furnish to the other Party copies of applications filed with all Governmental Authorities and copies of written communications received by such Party from any Governmental Authorities with respect to the transactions contemplated hereby. Each Party agrees that it will consult with the other Party with respect to the obtaining of all Required Consents and each Party will keep the other Party apprised of the status of material matters relating to completion of the transactions contemplated hereby. Neither Party shall agree to participate in any substantive meeting or discussion with any Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement or the Merger unless it consults with the other parties reasonably in advance and, to the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate. All documents that the Parties or their respective Subsidiaries are responsible for filing with any Governmental Authority in connection with the transactions contemplated hereby (including to obtain Consents of Governmental Authorities) will comply as to form in all material respects with the provisions of applicable Law.
Appears in 1 contract
Samples: Merger Agreement (West Corp)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Legal Requirements) to take, or cause to be taken, promptly all actions, and to do, or cause to be done, promptly and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable to consummate and make effective, effective the Merger and to satisfy all conditions to, in the most expeditious manner practicable, the other transactions contemplated by this Agreement, including: including (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; parties and Governmental Entities, (ii) 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 (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If Notwithstanding the Companyforegoing, on nothing in this Section 6.04(b) shall (i) limit any applicable rights a party may have to terminate this Agreement pursuant to Section 9.01 so long as such party has up to then complied in all material respects with its obligations under this Section 6.04(b), (ii) require any party to offer, accept or agree to (A) dispose or hold separate any part of its businesses, operations, assets or product lines, (B) not compete in any geographic area or line of business, (C) restrict the one handmanner in which, or Parentwhether, Merger Subsuch party or any of its Affiliates may carry on business in any part of the world or (D) pay any consideration (other than ordinary course filing, application or Second Merger Subsimilar fees and charges) to obtain any approval, on the other handconsent or waiver from a third party necessary, receives a request for additional information proper or documentary material from any Governmental Entity with respect advisable to consummate the transactions contemplated by hereby, including the Merger or (iii) require any party to this Agreement, then it shall use reasonable best efforts Agreement to make, contest 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that otherwise resist any administrative or judicial action or proceeding, including any proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party party, challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreementhereby, including the Merger, as violative of any antitrust law.
Appears in 1 contract
Samples: Merger Agreement (Brista Corp.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject conditions of this Agreement, Eros and the STX will cooperate with each other and use (and will cause their respective Subsidiaries and Affiliates to the conditions set forth in this Agreement (including those contained in this Section 5.09), each of the parties hereto shall, and shall cause its Subsidiaries to, use its 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 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 AgreementAgreement and to cause the conditions to the Merger set forth in Article VI to be satisfied as promptly as reasonably practicable, includingincluding using all reasonable best efforts to accomplish the following as promptly as reasonably practicable: (i) the obtaining of all necessary Permitsactions or non-actions, consents, approvals, registrations, waivers, permits, authorizations, orders, expirations or terminations of waiting periods and actions other confirmations from any Governmental Authority or nonactions from Governmental Entities other Person that are or may become necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (ii) the preparation and the making of all necessary registrations registrations, filings, forms, notices, petitions, statements, submissions of information, applications and filings other documents (including filings with Governmental EntitiesAuthorities) and that are or may become necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (iii) the taking of all steps as may be necessary necessary, proper or advisable to obtain an approval or waiver from, or to avoid an action or proceeding Action by, any Governmental Entities; Authority or other Person in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (iiiv) the obtaining defending of any lawsuits or other Actions, whether judicial or administrative, challenging this Agreement or that would otherwise prevent or delay the consummation of the transactions contemplated by this Agreement, including the Merger, performed or consummated by each party in accordance with the terms of this Agreement, including seeking to have any stay, temporary restraining order or injunction entered by any court or other Governmental Authority vacated or reversed, and such steps shall include proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, limitation or disposition of such assets or business of Eros, STX and their respective Subsidiaries and Affiliates, including entering into customary ancillary agreements on commercially reasonable terms relating to any such sale, divestiture or disposition of such assets or businesses (provided, that none of Eros, STX or their respective Subsidiaries and Affiliates shall be required to propose, negotiate, commit to or effect any such sale, divestiture, limitation or disposition of assets or businesses or ancillary agreements unless it shall be conditioned in all necessary material consents respects upon the prior or waivers from third parties; concurrent occurrence of the Closing), and (iiiv) the execution and delivery of any additional instruments necessary that are or may become reasonably necessary, proper or advisable to consummate the Mergers transactions contemplated by this Agreement, including the Merger, and to fully carry out fully the purposes of this Agreement. The Company Each of Eros and Parent STX shall, subject to applicable Law, promptly: (A) cooperate in consultation and coordinate cooperation with the other and as promptly as reasonably practicable, but in no event later than seven (7) Business Days after the taking date of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If , make or cause to be made its respective filing under the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the HSR Act and any other hand, receives a request for additional information or documentary material from any Governmental Entity applications and filings as reasonably determined by Eros and STX under other applicable Antitrust Laws with respect to the transactions contemplated by this Agreement, as promptly as practicable, but in no event later than as required by Applicable Law. Neither Eros nor STX will withdraw any such filings or applications without the prior written consent of the other party. Filings made under the HSR Act shall specifically request early termination of the waiting period thereunder (to the extent then it available).
(b) In furtherance of the foregoing Section 5.10(a), the parties shall use reasonable best efforts to, and shall cooperate in good faith with one another to, identify any third party consents (or notices) under any Contracts that are necessary or desirable for the consummation of the Merger. Each of the parties shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with obtain any 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 third-party consent (or permit deliver any of their respective Subsidiaries such notices) in the event that the parties mutually agree to commit to or agree) with any Governmental Entity to stayseek such consent; provided, toll, or extend any applicable waiting period under any applicable Lawshowever, without the prior written consent of the other party, neither Eros nor STX, nor any of their respective Subsidiaries or Affiliates, will grant or offer to grant any material accommodation or concession (such consent not to be unreasonably withheld, conditionedfinancial or otherwise), or delayedmake any material payment, to any third party in connection with seeking or obtaining any such contractual consent. In addition, in connection with and without limiting the efforts referenced in Section 5.10(a).
, 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 of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party, hereto in connection with proceedings under or relating to any Antitrust Law prior to their submission. Each of Eros and STX shall (bi) In furnish to the event that other such necessary information and reasonable assistance as the other may request in connection with the preparation of any administrative governmental filings, submissions or judicial action other documents, (ii) promptly inform the other of any such filing, submission or proceeding is instituted (other document and of any communication with or threatened to be instituted) by a from any Governmental Entity or private party challenging the Mergers Authority or any other transaction official, representative or staff thereof regarding the transactions contemplated by this Agreement, and permit the other to review and discuss in advance, and consider in good faith the views, and secure the participation, of the other in connection with any such filing, submission, document or communication (provided, however, that copies of filings made under the HSR Act need not be shared) and (iii) cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental Authority or any official, representative or staff thereof or in connection with any Action initiated by a Governmental Authority or private party, including promptly notifying the other party of any such investigation, inquiry or Action, and consulting in advance before making any presentations or submissions to a Governmental Authority or any official, representative or staff thereof, or, in connection with any Action initiated by a private party, to any other Person. In addition, each of Eros and STX shall promptly inform and consult with the other in advance of any meeting, conference or communication with any Governmental Authority or any official, representative or staff thereof, or, in connection with any Action by a private party, with any other Person, and to the extent not prohibited by Applicable Law or by the applicable Governmental Authority or other Person, not participate or attend any meeting or conference, or engage in any communication, with any Governmental Authority or any official, representative or staff thereof or such other Person in respect of the transactions contemplated by this Agreement without the other party unless it reasonably consults with the other party in advance and gives the other party a reasonable opportunity to attend and participate therein, and in the event one party is prohibited from, or unable to participate, attend or engage in, any such meeting, conference or communication, keep such party apprised with respect thereto. Each party shall furnish to the other copies of all filings (except filings made under the HSR Act), submissions, correspondence and communications between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Authority or any official, representative or staff thereof (or any other agreement Person in connection with any Action initiated by a private party), on the other hand, with respect to the transactions contemplated herebyby this Agreement. Each party may, as it deems advisable and necessary, reasonably designate material provided to the Company other party as “Outside Counsel Only Material” and also may reasonably redact the material as necessary to (A) remove personally or competitively sensitive information, (B) remove references concerning the valuation of a party and its Subsidiaries conducted in connection with the approval and adoption of this Agreement and the negotiations and investigations leading thereto, (C) comply with contractual arrangements, (D) prevent the loss of a legal privilege or (E) comply with Applicable Law.
(c) Each of the parties agrees that during the Interim Period it shall cooperate in all respects with Parent, Merger Subnot, and Second Merger Sub and shall use ensure that none of its reasonable best efforts to contest and resist Subsidiaries or controlled Affiliates shall, consummate, enter into any such action or proceeding and to have vacated, lifted, reversedagreement providing for, or overturned announce, any Orderinvestment, whether temporaryacquisition, preliminary, divestiture or permanent, other business combination (i) that is in effect and that prohibits, prevents, would reasonably be expected to materially delay or restricts prevent the consummation of the transactions contemplated by this AgreementAgreement or (ii) involving any Person or business competitive with the businesses of the other party and its Subsidiaries.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shallSellers and the Purchasers, and subject to Section 5.3, shall cause its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or cause to be takentaken (including by their respective Affiliates), all actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, effective the transactions contemplated by this Agreement, including: including (i) the obtaining of all necessary Permitsactions or non-actions, waivers, consents and actions or nonactions approvals from Governmental Entities Authorities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; Authority, (ii) the obtaining of all necessary material consents consents, approvals or waivers from third parties; , (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iiiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers and transactions contemplated hereby; provided, however, that in no event shall the Sellers, the Companies or any of their Subsidiaries be required to fully carry out pay any fee, penalty or other consideration in excess of $50,000 to any third party for any consent or approval required for the purposes consummation of the transactions contemplated by this Agreement under any Contract, nor shall the Sellers, the Companies nor any of their Subsidiaries be required to materially modify any Contract, except as expressly contemplated by this Agreement. The Company .
(b) Without limiting the foregoing, the Sellers and Parent the Purchasers shall, subject and shall cause their respective Affiliates to, (i) as promptly as practicable make the necessary applications, requests, notices and other filings, including filings pursuant to applicable Lawthe HSR Act, promptly: if applicable, and thereafter timely make all other filings and notifications, required to obtain or maintain all FCC Approvals, State PUC Approvals, the Non-U.S. Telecommunications Approvals, and, if applicable, the CFIUS Clearance, the Competition Act Approval, and the ICA Clearances, (ii) use their respective reasonable best efforts to cooperate with each other in (A) cooperate and coordinate 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 Authorities in connection with the other in execution and delivery of this Agreement and the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by this Agreement. If , (B) promptly providing each other with all information necessary for the Companypreparation of such filings on a timely basis, on the one handand (C) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use their respective reasonable best efforts if commercially practicable to take, or Parentcause to be taken, Merger Suball other actions and do, or Second Merger Subcause to be done, on all other things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, including taking all such further actions as may be necessary to resolve such objections and/or inquiries, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities, competition authorities, national security authorities of any other handnation or other jurisdiction, receives a request for additional information the FCC, the State PUCs, Non-U.S. Telecommunications Agencies, CFIUS, the Canadian Competition Bureau, Industry Canada, or documentary material from any Governmental Entity other Person may assert under any Regulatory Law with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts and to make, avoid or cause eliminate each and every impediment under any Law that may be asserted by any Governmental Authority with respect to be made, the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably practicable possible, and after consultation (iv) subject to applicable legal limitations and the instructions of any Governmental Authority, keep each other apprised of the status of and cooperate with each other with respect to matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other partywith copies of notices or other communications received by the Sellers, an appropriate response the Companies, or the Purchasers, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Authority with respect to such transactions.
(c) In connection with seeking the foregoing approvals, none of the Purchasers or Sellers or their respective Affiliates shall be required to, and Sellers may not, without the prior written consent of the Purchasers, become subject to, consent to, or offer or agree to, or otherwise take any action, other than as expressly contemplated in compliance this Agreement, with such requestrespect to, andany requirement, if permitted by applicable Law 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 Purchasers, Sellers, or any of their respective Affiliates in any manner, (ii) conduct, restrict, operate, or otherwise change the assets, business, or portion of business of the Purchasers, Sellers or any of their respective Affiliates in any manner, or (ii) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Purchasers, Sellers or any of their respective Affiliates in any manner.
(d) Each of the Sellers and by any applicable Governmental Entity, provide the Purchasers shall permit counsel for the other party’s counsel with advance notice and the Party reasonable opportunity to attend review in advance, and consider in good faith the views of the other Party in connection with, any proposed written communication to any Governmental Authority (including the Proxy Statement). Each of the Sellers, on the one hand, and each of the Purchasers, on the other hand, agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in respect of any filing made thereto Authority in connection with the transactions contemplated by this AgreementAgreement unless it consults with the other Parties in advance and, to the extent not prohibited by such Governmental Authority, gives the other Parties the opportunity to attend and participate. Neither Parent nor Upon receipt of prior notice thereof, each of the Company Sellers and the Purchasers shall commit ensure that its appropriate officers and employees shall be available to attend, as the Sellers, the Purchasers or agree (the applicable Governmental Authority may request, any scheduled hearings or permit meetings in connection with obtaining any FCC Approvals, State PUC Approvals, the Non-U.S. Telecommunications Approvals, the CFIUS Clearance, the Competition Act Approval, and/or the ICA Clearances. Notwithstanding anything to the contrary in this Section 5.2, materials provided to the other Party or its outside counsel may be redacted to remove any estimate of the valuation of the Companies and their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, tollthe Business, or extend 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 5.2 so as to preserve any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)privilege.
(be) In furtherance and not in limitation of the event that covenants of the Parties contained in this Section 5.2, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this AgreementAgreement as violative of any Regulatory Law, or any other agreement contemplated hereby, each of the Company Sellers and the Purchasers shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub the other and shall use its their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Orderdecree, judgment, injunction or other order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement. If there are any petitions for reconsideration, appeals or similar filings made seeking to overturn the grant of any Company Approval, or if the FCC, any State PUC and/or any Non-U.S. Telecommunications Agency seeks to reconsider such grant on its own motion, then the Parties shall each use commercially reasonable efforts to defend the applicable grants against such actions. If at any point during the CFIUS review process, CFIUS offers the Parties an opportunity to withdraw and resubmit their joint notice, and either Party opts to request withdrawal and resubmission in response to such offer by CFIUS, then the other Party shall agree to join the request for withdrawal and resubmission at the end of the first initial 30-day review.
(f) Except as expressly contemplated by this Agreement, no Party shall, and no Party shall cause its Affiliates to, take any action (including any acquisition of businesses or assets) which would reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement due to the actions of any Governmental Authority.
(g) For purposes of this Agreement, “Regulatory Law” means all federal, state, local or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed 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) protect the national security or the national economy of any nation or (iii) regulate the telecommunications industry in any nation (including the Communications Act).
Appears in 1 contract
Samples: Equity Purchase Agreement (Primus Telecommunications Group Inc)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement Agreement, Parent and Merger Sub, on the one hand, and the Company, on the other hand, will use (including those contained and, in this Section 5.09), each the case of the parties hereto shallCompany, and shall will cause its Subsidiaries toAffiliates to use, use its if applicable) their respective commercially reasonable best efforts (A) to take, take (or cause to be taken, ) all actions, and to do, ; (B) do (or cause to be done, ) all things; and to (C) assist and cooperate with the other parties Parties in doingdoing (or causing to be done) all things, all things in each case as are necessary, proper, proper or advisable pursuant to applicable Law or otherwise to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by this AgreementMerger and the other Transactions, including: including by:
(i) causing the conditions to the Merger set forth in Article VII to be satisfied (subject to the limitations on obligations with respect to obtaining of consents from Governmental Authorities set forth in this Agreement);
(ii) (1) obtaining all necessary PermitsConsents, waivers, approvals, orders, Permits and actions or nonactions authorizations from Governmental Entities Authorities; and the (2) making of all necessary registrations registrations, declarations and filings (including filings with Governmental EntitiesAuthorities, in each case, set forth on Section 6.1(a)(ii) of the Company Disclosure Letter (in the case of each of items (1) and the taking of all steps (2) other than as may would reasonably be necessary expected to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and cause a Burdensome Effect);
(iii) the execution obtaining all Consents, waivers and delivery of approvals and delivering all notifications pursuant to any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (AMaterial Contracts set forth on Section 6.1(a)(iii) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i)Company Disclosure Letter, (ii), and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 this Agreement and the transactions contemplated by this Agreement. Neither Parent nor the Company 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 any applicable Laws, without the prior written consent consummation of the other (Merger so as to maintain and preserve the benefits to the Surviving Company of such consent not to be unreasonably withheld, conditioned, or delayed).Material Contracts as of and following the consummation of the Merger; Table of Contents
(biv) In the event that subject to Section 6.2 and Section 6.17, defending of any administrative lawsuits or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Orderlegal proceedings, whether temporaryjudicial or administrative, preliminary, challenging this Agreement or permanent, that is in effect and that prohibits, prevents, or restricts the consummation of the transactions contemplated hereby, including the Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed; and
(v) executing and delivering any additional certificates, instruments and other documents as may be reasonably necessary or appropriate to carry out and effectuate the purpose and intent of this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of Parent, Merger Sub and the parties hereto shall, and Company shall cause its Subsidiaries to, use its their reasonable best efforts to take, or cause to be taken, all actionsactions necessary, proper or advisable to (i) consummate the transactions contemplated hereby and to do, or cause the conditions set forth in Article VI to be donesatisfied as promptly as practicable (and in any event prior to the Outside Date); (ii) prepare as promptly as practicable all necessary applications, notices, filings, requests and other documents to assist be made or filed by such Party (and cooperate with the other parties Parties with respect to any applications, notices, filings, requests and other documents to be made or filed by the other Parties) 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, connection with the transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shallobtain as promptly as practicable all consents, subject to applicable Lawapprovals, promptly: (A) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i)clearances, (ii)permits, and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party authorizations, registrations, filings or parties hereto, as the case may be, of any material communication notices from any Governmental Entity regarding any of (or other Person) which is required to be obtained in connection with the transactions contemplated by this Agreement. If the Company, ; (iv) comply promptly with all requirements under applicable Law which may be imposed on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity such Party with respect to the transactions contemplated by this Agreement; (v) defend all lawsuits or other Proceedings to which it (or with respect to the Company, then it the Company Subsidiaries is) a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other Proceeding; (vi) have lifted or rescinded any injunction or restraining Order which may adversely affect the ability of the Parties to consummate the transactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable Order with respect thereto and (vii) resolve any objection or assertion by any Governmental Entity challenging this Agreement or the transactions contemplated hereby.
(b) In furtherance of the foregoing, the Company, Parent and Merger Sub agree to, as promptly as practicable after the date hereof: (i) make (or cause to be made) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, which filing shall in any event be made within twenty (20) Business Days following the date hereof, and (ii) make such filings and submissions contemplated by applicable foreign Competition Laws as set forth on Section 5.6(b) of the Company Disclosure Letter.
(c) Subject to the other provisions of this Agreement, including those set forth elsewhere in this Section 5.6, each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall (i) to the extent permitted by applicable Law, promptly inform the other Party of any substantive communication (oral and written) received by such party from, or given by such Party to, any Governmental Entity with respect to any applications, notices, filings or requests made (or any consents, approvals or clearances sought to be obtained) in connection with the transaction contemplated by this Agreement (including keeping the other Parties apprised, on a current basis of the status thereof); (ii) to the extent permitted by applicable Law, promptly inform the other Party of any substantive communication (oral and written) received by such Party from, or given by such Party to, any Person that is not a Governmental Entity in connection with any Proceeding (or threatened Proceeding) by such Person regarding or arising out of this Agreement or the transactions contemplated by this Agreement; (iii) consult with the other Parties (subject to applicable Law relating to the exchange of information) in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to any applications, notices, filings or requests made (or any consents, approvals or clearances sought to be obtained) in connection with the transaction contemplated by this Agreement; (iv) use reasonable best efforts to makefurnish to the other Party and, or cause upon request, to any Governmental Entities such information and assistance as may be made, as soon as reasonably practicable and after consultation requested in connection with the other partyforegoing, an appropriate response in compliance including by responding promptly to and using reasonable best efforts to comply fully with such request, and, if permitted by applicable Law and by any request for additional information or documents under any applicable Governmental Entity, provide the other party’s counsel with advance notice Law; and the opportunity to attend and (v) not independently participate in any meeting (including telephonic meetings) with any Governmental Entity in connection with the foregoing without giving the other Party sufficient prior notice of the meeting (including telephonic meetings) and, to the extent permitted by such Governmental Entity, the opportunity to attend and/or participate in such meeting (including telephonic meetings). Notwithstanding anything in this Section 5.6 to the contrary, materials provided by or on behalf of Parent to the Company or its counsel or the Company to Parent or its counsel may be redacted to the extent necessary (a) to remove references concerning Parent’s or the Company’s valuation analyses with respect to the Company and the Company Subsidiaries, (b) as necessary to comply with Contracts in effect on the date hereof, (c) to address reasonable concerns regarding attorney-client privilege or (d) to remove personal, proprietary and other confidential business information. Neither Parent nor the Company shall acquire, or agree to acquire, any business, entity or undertaking, where that acquisition, if completed, will or is reasonably likely to have a materially adverse effect on the prospects of obtaining any regulatory approval to be sought in relation to the Agreement.
(d) Notwithstanding anything to the contrary in this Agreement (i) in no case shall the Company, Parent or Merger Sub be obligated to (and the Company shall not, without the written consent of Parent, and in no event shall Parent or Merger Sub be deemed to have breached any representation, warranty, covenant or agreement for refusing to) become subject to, consent to or agree to, or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change its respective assets or business (including those of its respective Affiliates (but for the avoidance of doubt excluding any Specified Persons, as to whom no such requirements, conditions, understandings, agreements or order shall apply in any event)) in any manner that, either individually or in the aggregate, (A) materially adversely affects the financial condition, business, or the operations of (x) the Company and the Company Subsidiaries, on a consolidated basis, or (y) Parent and its Affiliates or (B) prohibits or materially limits the ownership, control or operation by (x) the Company and the Company Subsidiaries or (y) Parent and its Affiliates of any filing made thereto material portion of its or their respective businesses or assets, or compels the Company or Parent or any of its Affiliates to dispose of or hold separate any of its material businesses or assets or any portion thereof.
(e) For the avoidance of doubt, Parent and the Parent Subsidiaries and the Company and the Company Subsidiaries shall not be required (and without the prior consent of Parent, the Company and the Company Subsidiaries shall not) to take any action with respect to any order or any applicable Law or in order to obtain any approval, consent or clearance which is not conditioned upon the consummation of the Merger.
(f) Without limiting the generality of anything contained in this Section 5.6 but subject in all respects to Section 5.6(d), each Party shall use their respective reasonable best efforts to obtain any consents or approvals from any Persons (other than Governmental Entities) that are necessary or advisable in connection with the transactions contemplated by this Agreement. Neither Parent nor In the event that the Parties hereto shall fail to obtain any such third party consent, the Company shall commit use its reasonable best efforts, and shall take such actions as are reasonably requested by Parent, to or agree (or permit minimize any of their respective adverse effect upon the Company and the Company Subsidiaries to commit to or agree) with any Governmental Entity to stay, tollresulting, or extend which would reasonably be expected to result, after the Effective Time, from the failure to obtain such consent. Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any applicable waiting period under such approval or consent with respect to any applicable Lawstransaction contemplated by this Agreement, (i) none of the Company or any Company Subsidiary shall be required to, or, without the prior written consent of the Parent, shall, pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation due to such person and (such consent not to be unreasonably withheld, conditioned, or delayed).
(bii) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with none of Parent, Merger SubSub or any of their Affiliates shall be required to pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, and Second Merger Sub and shall use its reasonable best efforts to contest and resist make any such action commitment or proceeding and to have vacated, lifted, reversed, incur any liability 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 Agreementother obligation.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth herein provided, except as otherwise provided in this Agreement (including those contained in this Agreement, and without limiting the obligations of the parties under Section 5.09)4.6, each of the parties hereto shall, and shall cause its Subsidiaries to, agrees to use its reasonable best efforts to take, (i) take or cause to be taken, taken all actions, and to do, do or cause to be done, and to assist and cooperate with the other parties party hereto in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Closing and the transactions contemplated by this Agreementhereby, including: including (iA) the obtaining of all necessary Permitsnecessary, waiversproper or advisable Governmental Approvals and making all necessary, proper or advisable Governmental Filings and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval such Governmental Approvals (including under insurance Laws), (B) resolving any objections that may be asserted by any Governmental Entity with respect to the Closing or waiver fromany other transaction contemplated by this Agreement and the Ancillary Agreements, (C) preventing the entry of, and having vacated, lifted, reversed or to avoid an action or proceeding byoverturned, any Governmental Entities; (ii) Order that would prevent, prohibit, restrict or delay the obtaining consummation of all necessary material consents the Closing or waivers from third parties; any other transaction contemplated by this Agreement or the Ancillary Agreements and (iiiD) the execution executing and delivery of delivering any additional agreements, documents or instruments necessary necessary, proper or advisable to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of, this Agreement and the Ancillary Agreements. Notwithstanding the foregoing, in no event shall any party or its respective Affiliates be required to take any of this Agreement. The Company and Parent shall, subject to applicable Law, promptlythe following actions: (A1) cooperate propose, negotiate, offer to commit and coordinate with effect by Order, trust, or otherwise, the sale, divestiture, license, disposition or holding separate of (x) any material assets or businesses of the Company or (y) any assets or businesses of any other Person or, in the taking case of clauses (x) and (y), otherwise offer to take or offer to commit to take any similar action (including any action that limits (or, with respect to the Company, materially limits) such Person’s freedom of action, ownership or control with respect to, or its ability to retain or hold, any businesses, assets, product lines, properties or services or that limits (or, with respect to the Company, materially limits) such Person’s freedom of action, ownership or control with respect to, or ability to retain or hold, any businesses, assets, product lines, properties or services); (2) terminate, relinquish, modify or waive existing relationships, ventures, contractual rights, obligations or other arrangements (x) of the Company in such a way that, individually or in the aggregate, would be material and adverse to the Company or (y) of any other Person; (3) create any relationships, ventures, contractual rights, obligations or other arrangements (x) of the Company in such a way that, individually or in the aggregate, would be material and adverse to the Company or (y) of any other Person; (4) provide or assume any material direct or indirect guarantee, capital maintenance, minimum capital level or other capital support to the Company or incur any material obligation or liability with respect to the Company; and (5) enter or offer to enter into agreements and stipulate to the entry of an Order or file appropriate applications with any Governmental Entity in connection with any of the actions contemplated by the foregoing clauses (i), 1) through (ii), and (iii) immediately above; and (B) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed4).
(b) In The Buyer shall not, and shall cause its Affiliates not to, other than with respect to any transactions by Buyer or any of its Affiliates currently in process and described to Seller prior to the event that any administrative date hereof or judicial action otherwise made in the ordinary course of business, directly or proceeding is instituted indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license (or threatened agree to be institutedacquire, purchase, lease or license) by a Governmental Entity any business, corporation, partnership, association or private party challenging the Mergers other business organization or division or part thereof, or any other transaction securities or collection of assets, if doing so would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining any, Governmental Approvals necessary, proper or advisable to consummate the transactions contemplated by this AgreementAgreement and the Ancillary Agreements, or (ii) materially increase the risk of any other agreement contemplated hereby, Governmental Entity entering an order prohibiting the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this AgreementAgreement or the Ancillary Agreements, (iii) materially increase the risk of not being able to remove any such order of a Governmental Entity on appeal or otherwise or (iv) otherwise impair or delay the ability of the Buyer to perform its material obligations under this Agreement and the Ancillary Agreements.
Appears in 1 contract
Samples: Stock Purchase Agreement (James River Group Holdings, Ltd.)
Reasonable Best Efforts. (a) Upon On the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, Securityholders and shall cause its Subsidiaries to, the Company agree to use its reasonable best efforts to take, or cause to be taken, all actionsreasonable actions to cause the conditions set forth in ARTICLE VII to be satisfied, and the Purchaser agrees to douse its reasonable best efforts to take, or cause to be done, and to assist and cooperate with the other parties in doingtaken, all things necessary, proper, or advisable reasonable actions to consummate and make effective, and cause the conditions set forth in ARTICLE VIII to satisfy all conditions tobe satisfied, in the most expeditious manner practicableeach case, the transactions contemplated by this Agreement, including: including (iw) the obtaining of all necessary Permits, waivers, consents and actions or nonactions approvals from Governmental Entities Government Authorities and the making of all necessary registrations and filings (including filings with Governmental Entities) filings, and the taking of all reasonable steps as may be necessary to obtain an any approval or waiver from, or to avoid an any action or proceeding by, any Governmental EntitiesGovernment Authority; (iix) furnishing to the obtaining other all information about such Party or its Affiliates required to be included in any application or other filing to be made by such Party pursuant to the rules and regulations of any Government Authority in connection with the Merger; (y) supplying each other copies of all necessary material consents correspondence, filings or waivers from third parties; and (iii) the execution and delivery communications, including file memoranda evidencing telephone conversations by or on behalf of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 such party with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity Government Authority 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 (z) the 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 defending of any filing made thereto in connection with the transactions contemplated by lawsuits or any other legal proceedings, whether judicial or administrative, challenging this Agreement. Neither Parent nor , the Company shall commit to Merger 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 any applicable Laws, without the prior written consent consummation of the other (transactions contemplated hereby, including, without limitation, seeking to have any temporary restraining order entered by any court or administrative authority vacated or reversed; provided that in no event shall a Party be required to defend any such consent not lawsuit or other legal proceeding which it believes to be unreasonably withheld, conditioned, or delayed)materially adverse to its commercial interests.
(b) Without limiting the generality of the foregoing, each Company shall give or cause to be given any notices to third parties required to be given pursuant to any Material Contract to which it is a party as a result of this Agreement or any of the transactions contemplated hereby. Each Company shall use its commercially reasonable efforts to obtain prior to the Closing, and deliver to Purchaser at or prior to the Closing, all consents, waivers and approvals required to be obtained under each Material Contract to which it is a party or by which it is bound, in form and substance reasonably acceptable to Purchaser. In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate fail to obtain any third party consent, waiver or approval described in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.Section
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to conditions of this Agreement, Parent, Purchaser and the conditions set forth in this Agreement (including those contained in this Section 5.09), Company will each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, in good faith, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, properproper or desirable, or advisable under applicable laws, so as to consummate permit consummation of the Merger as promptly as practicable and make effectiveotherwise to enable consummation of the Transactions, 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 Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be actions set forth in Schedule 5.01(a) and providing each other Party cooperation reasonably necessary in connection therewith, and each will cooperate fully with, and furnish information to, the other Party to obtain an approval that end; provided, that if any objections are asserted with respect to the Transactions under Exon-Xxxxxx or waiver fromany Applicable Antitrust Law, or if any suit is threatened to avoid an action or proceeding bybe instituted, by any Governmental Entities; (ii) the obtaining of all necessary material consents Authority or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking private party challenging any of the Transactions or otherwise brought under Exon-Xxxxxx or any Applicable Antitrust Law that would prohibit or materially impair or materially delay the consummation of the Transactions, the Parties each agree to take actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order necessary to effectuate the taking of resolve any objections as may be asserted under Exon-Xxxxxx (including by CFIUS) and such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity Applicable Antitrust Law with respect to the transactions contemplated by this AgreementMerger (including disposing of or holding separate any businesses or assets of the Company, then it shall use reasonable best efforts to make, Parent 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, 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 any of their respective Subsidiaries Affiliates under the HSR Act); provided, that notwithstanding any provision of this Agreement to commit the contrary, this Agreement shall not require Parent or any of its Affiliates (i) to agree to any prohibition, limitation or agree) with restriction on the operations of the Company, Parent or any Governmental Entity to stay, tollof their respective Affiliates, or extend any applicable waiting period under material portion of the business or assets of the Company, Parent or any applicable Lawsof their respective Affiliates, without as a result of the prior written consent Merger or any of the other Transactions or (such consent not ii) to compel the Company, Parent or any of their respective Affiliates to dispose of or hold separate any portion of the business or assets of the Company, Parent or any of their respective Affiliates that would reasonably be unreasonably withheldexpected to have a material adverse effect on the financial condition, conditionedresults of operations, assets, or delayedbusiness of (x) the Company and its Subsidiaries, taken as a whole, or (y) Parent and its Subsidiaries taken as a whole (measured against the financial condition, results of operations, assets and business of the Company and its Subsidiaries, taken as a whole), as a result of the Merger or any of the other Transactions. Notwithstanding anything in this Agreement to the contrary, no action taken by Parent, Purchaser or any of their respective Affiliates pursuant to this Section 5.01 shall entitle Parent or Purchaser to any diminution of the Merger Consideration.
(b) In The Company shall deliver to Parent at the event Closing a duly executed and acknowledged certificate, in a form and substance acceptable to Parent and in compliance with the Code and Treasury regulations, certifying such facts as to establish that any administrative or judicial action or proceeding the sale of Company Common Stock is instituted exempt from withholding under Section 1445 of the Code.
(or threatened c) The Company shall, simultaneously with the Effective Time, reasonably cooperate with Parent to satisfy all outstanding obligations (including all loans and letter of credit reimbursement obligations) under the Company Credit Agreement and cause all Liens (for this purpose without giving effect to the exceptions in clauses (a), (b) and (c) in the definition thereof) securing obligations thereunder to be institutedreleased.
(d) by a Governmental Entity or private party challenging Promptly following the Mergers or any other transaction contemplated by date of this Agreement, or any other agreement contemplated hereby, the Company shall cooperate take reasonable steps to ensure that it engages in all respects good faith consultation with ParentParent prior to entering into any Contract that restricts in any material respect the conduct of business by it or any of its Subsidiaries or its or their ability (or, Merger Subto the Knowledge of the Company, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts which following the consummation of the transactions contemplated by this AgreementMerger, could materially restrict the ability of Parent or any of its Affiliates, including the Company and its Subsidiaries) to compete or engage in any material line of business, or to develop, market or distribute any material products or material services, in each case, in any geographic territory.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.096.08), each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, including: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the obtaining of all necessary material consents or waivers from third parties; parties that are necessary to consummate the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers Offer and the Merger and to fully carry out the purposes of 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 consummate the Offer and the Merger on the terms and conditions set forth in this Agreement. The Company and Parent shall, subject to applicable Law, promptly: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 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, provide the other party’s '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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, 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 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 instituted) by a Governmental Entity or private party challenging the Mergers Offer, the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company Company, Parent and Merger Sub shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by 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) Upon Subject to the terms and subject to the conditions set forth in of, and other than as expressly contemplated by, this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shallP66 Parties, on the one hand, and the Partnership Parties, on the other hand, shall cooperate with the other and use, and shall cause its their respective Subsidiaries toto use, use its their reasonable best efforts to (a) take, or cause to be taken, all appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doingall things, all things necessary, proper, 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, until the earlier of Effective Time and the termination of this Agreement, retaining ownership and voting control, directly or indirectly, over all Common Units and the General Partner Interest in the Partnership owned by DCP LLC and the General Partner, as applicable, as of the date of this Agreement, and 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 including preparing and filing as promptly as practicable all documentation to effect all necessary Permitsfilings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents; (b) obtain promptly (and in any event no later than the Outside Date) all approvals, consents, waivers, clearances, expirations or terminations of waiting periods, registrations, Permits, authorizations and actions or nonactions other confirmations from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) Authority or third party necessary, proper or advisable to consummate the obtaining of all necessary material consents or waivers from third partiestransactions contemplated by this Agreement; and (iiic) defend any Proceedings challenging this Agreement or the execution and delivery consummation of the transactions contemplated by this Agreement or seek to have lifted or rescinded any additional instruments necessary injunction or restraining order or other order adversely affecting the ability of the parties to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If Notwithstanding anything in this Agreement to the Companycontrary, on the one handP66 Parties shall not be obligated pursuant to this Section 6.3 to (i) propose, negotiate, commit to, or Parenteffect, Merger Subby consent decree, hold separate order, or Second Merger Subotherwise, on the sale, divestiture or disposition of, or other handlimitations or restrictions on, receives a request for additional information any assets, product or documentary material from service lines, or businesses of Parent (or its Affiliates), DCP LLC (or its Affiliates) or the Partnership (or its Subsidiaries), (ii) offer to terminate or modify any Governmental Entity existing relationships or contractual rights or obligations or (iii) otherwise take or commit to take actions that limit Parent’s (or its Affiliates’), DCP LLC’s (or its Affiliates’) or the Partnership’s (or its Subsidiaries’) freedom of action with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to maketo, or cause its ability to be maderetain, as soon as reasonably practicable and after consultation with the other partyany assets, 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 product or agree (service lines 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed)businesses.
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Phillips 66)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of Parent and Acquisition Sub, on the parties hereto shallone hand, and (subject to the Company’s rights under Section 6.3) the Company, on the other hand, 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 party or parties hereto in doing, all things reasonably necessary, proper, proper or advisable under applicable Law or otherwise to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, includingincluding using reasonable best efforts to: (i) cause the obtaining of all necessary Permits, waivers, conditions to the Offer set forth in Section 1.1(b) to be satisfied and actions or nonactions from Governmental Entities and cause the making of all necessary registrations and filings (including filings with Governmental Entitiesconditions to the Merger set forth in Section 2.3(b) and the taking of all steps as may to be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entitiessatisfied; (ii) the obtaining of obtain all necessary material consents actions or waivers non-actions, waivers, consents, approvals, orders and authorizations from third partiesGovernmental Authorities and make all necessary registrations, declarations and filings with Governmental Authorities that are necessary to consummate the Offer and the Merger and the other transactions contemplated by this Agreement; and (iii) obtain all necessary or appropriate consents, waivers and approvals under any Material Contracts to which the execution Company or any of its Subsidiaries is a party in connection with this Agreement and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, subject to applicable Law, promptly: (A) cooperate and coordinate with the other in the taking consummation of the actions transactions contemplated by clauses (i), (ii), hereby so as to maintain and (iii) immediately above; and (B) supply preserve the other with any information that may be reasonably required in order to effectuate benefits under such Material Contracts following the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any consummation of the transactions contemplated by this Agreement. If In addition to the Companyforegoing, neither Parent or Acquisition Sub, on the one hand, or Parent, Merger Sub, or Second Merger Subnor the Company, on the other hand, receives a request for additional information or documentary material from shall take any Governmental Entity with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to makeaction, or cause fail to take any action, that is intended to, or has (or would reasonably be madeexpected to have) the effect of, as soon as reasonably practicable and after consultation with preventing, impairing, delaying or otherwise adversely affecting the other party, an appropriate response in compliance with consummation of the Offer or the Merger or the ability of 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 party 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 fully perform its obligations under this Agreement. Neither Parent nor Notwithstanding anything to the Company 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 any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated herebycontrary herein, the Company shall cooperate in all respects with Parentnot be required prior to the Effective Time to pay any consent or other similar fee, Merger Sub“profit sharing” or other similar payment or other consideration (including increased rent or other similar payments or any amendments, and Second Merger Sub and shall use its reasonable best efforts supplements or other modifications to contest and resist (or waivers of) the existing terms of any such action or proceeding and to have vacated, lifted, reversedContract), or overturned the provision of additional security (including a guaranty) to obtain the consent, waiver or approval of any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this AgreementPerson under any Contract.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Legal Requirements) to take, or cause to be taken, promptly all actions, and to do, or cause to be done, promptly and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable to consummate and make effective, effective the Merger and to satisfy all conditions to, in the most expeditious manner practicable, the other transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Permits, waivers, consents or waivers from third parties and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; (ii) the obtaining defending of all necessary material consents any lawsuits or waivers from third partiesother legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement; and (iii) the execution and delivery of any additional instruments necessary to consummate the Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If Notwithstanding the Companyforegoing, on nothing in this Section 6.04(b) shall: (i) limit any applicable rights a party may have to terminate this Agreement pursuant to Section 9.01 so long as such party has up to then complied in all material respects with its obligations under this Section 6.04(b); (ii) require any party to offer, accept or agree to (A) dispose or hold separate any part of its businesses, operations, assets or product lines; (B) not compete in any geographic area or line of business; (C) restrict the one handmanner in which, or Parentwhether, Merger Subsuch party or any of its Affiliates may carry on business in any part of the world; or (D) pay any consideration (other than ordinary course filing, application or Second Merger Subsimilar fees and charges) to obtain any approval, on the other handconsent or waiver from a third party necessary, receives a request for additional information proper or documentary material from any Governmental Entity with respect advisable to consummate the transactions contemplated by hereby, including the Merger; or (iii) require any party to this Agreement, then it shall use reasonable best efforts Agreement to make, contest 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that otherwise resist any administrative or judicial action or proceeding, including any proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party party, challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreementhereby, including the Merger, as violative of any antitrust law.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.095.11), each of the parties 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 in doing, all things necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions within such party’s control to, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including: including (i) the obtaining of all necessary Permitspermits, waivers, consents, approvals and actions or nonactions non-actions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) 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 Entities; , (ii) the 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 Mergers 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 cause Merger Sub to consummate the Merger on the terms and conditions set forth in this Agreement. The Company and Parent shall, subject to applicable Law, promptly: promptly (Ax) cooperate and coordinate with the other in the taking of the actions contemplated by clauses (i), (ii), ) and (iii) immediately above; above and (By) supply the other with any information that may be reasonably required in order to effectuate the taking of such actionsactions (provided that each party may, at its discretion, impose reasonable safeguards to prevent the disclosure of competitively-sensitive information of such party to the other party). Each party hereto shall shall, to the extent permitted by applicable Law, promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, Company or Parent, Merger Sub, or Second Merger Sub, on the other hand, 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 its 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, toll or extend any applicable waiting period under any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, withheld or delayed).
(b) Without limiting the generality of the undertakings pursuant to Section 5.11(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 all filing fees in connection therewith shall be borne solely by Parent) 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 5.11(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 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 instituted) by a Governmental Entity or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company parties shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall each use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any Order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, none of Parent, Merger Sub or any of their Affiliates shall be required to defend, contest or resist any action or proceeding, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Order, in connection with the transactions contemplated by 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 Affiliates, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries or Affiliates in any manner, or (iii) 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 or Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.)
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.097.01(c)), each of the parties hereto Company, on the one hand, and Parent and Merger Sub, on the other hand, shall, and shall cause its Subsidiaries their respective controlled Affiliates to, use its their reasonable best efforts (i) 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 party or parties hereto in doing, all things necessary, proper, 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 Permits, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps acts necessary to cause the conditions to the other party’s (viewing Parent and Merger Sub together) obligation to close set forth in Article 8 to be satisfied, as promptly as practicable (but nothing in this Section 7.01(a) will require any party to waive any such condition to such party’s obligation to close set forth in Article 8), (ii) to obtain all actions and Permits from Governmental Authorities, cause the expiration or termination of any applicable waiting periods and make all registrations, declarations, notices and filings with any Governmental Authorities, in each case, that may be necessary or advisable to obtain an approval or waiver fromconsummate the transactions contemplated by this Agreement as promptly as practicable, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary material consents or waivers from third parties; and (iii) to obtain all necessary actions, consents, approvals or waivers from, and the execution giving of all required notices to, Third Parties under any Contracts to which the Company or any of its Subsidiaries is a party in connection with this Agreement and delivery 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) and (iv) to execute or deliver any additional instruments reasonably necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of, this Agreement as promptly as practicable.
(b) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall (i) cooperate with each other and use their respective reasonable best efforts to, as promptly as practicable, prepare all documentation, effect all applications, notices, petitions and filings, and obtain all Permits of any Governmental Authorities that are necessary or advisable to consummate the transactions contemplated by this Agreement. The Company Agreement (including the Merger) as promptly as practicable and Parent shallto comply with the terms and conditions of all such Permits, subject to applicable Law, promptly: (Aii) cooperate and coordinate with the other party in the taking making of the actions contemplated by clauses (i)such applications, notices, petitions or filings, as applicable, (ii), and (iii) immediately above; and (B) supply the other party with any information that may be reasonably required in order to effectuate such applications, notices, petitions or filings, as applicable and (iv) Parent shall pay all filing fees and expenses incurred in connection with this Section 7.01(b) (excluding all fees and expenses payable to any attorneys, accountants, consultants or other advisors incurred in connection with this Section 7.01(b), which shall be paid by the taking of party incurring such actionsexpenses). Each party hereto of Parent and the Company shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity Authority regarding any of the transactions contemplated by this Agreementhereby (including the Merger). If Parent or the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on the other hand, Company receives a any request for additional information or documentary material from any such Governmental Entity Authority with respect to the transactions contemplated by this Agreementhereby (including the Merger), then it such party shall use reasonable best efforts to make, or cause to be made, as soon promptly as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. Subject to applicable Law, andno filing of, if permitted by applicable Law and by any applicable Governmental Entityor amendment or supplement to, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting or written correspondence with any Third Party or any Governmental Entity in respect of any filing made thereto Authority or its staff in connection with the transactions contemplated by this Agreement. Neither Parent nor Agreement shall be made by the Company shall commit to or agree Parent (or permit any of their respective controlled Affiliates) without providing the other party a reasonable opportunity to review and comment thereon, and each of Parent and the Company shall consult with each other in advance of any meeting or conference with, any such Governmental Authority (other than non-material and routine communications between counsel and a Governmental Authority regarding the regulatory approval process or status). In connection with the foregoing, each of the parties agrees to act reasonably and as promptly as practicable. Notwithstanding anything to the contrary in this Section 7.01, (A) the Company shall not have the right to review any portions of the materials filed by Parent or Merger Sub with a Governmental Authority that contain competitively sensitive business or other proprietary information or confidential supervisory information, and (B) Parent shall have the principal responsibility for determining and implementing the strategy for obtaining any necessary Permits under any applicable Law (including with respect to timing and potential ways to address any concerns that may be raised) and shall lead and direct all submissions to, meetings, negotiations and communications with any Governmental Authority (or other Third Party) in connection with matters with respect to any applicable Law; provided, that the foregoing shall not limit in any respect any party’s obligations under this Agreement.
(c) 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 (i) initiate, litigate, challenge, defend or otherwise participate or take any action with respect to any Action, inquiry or investigation by, against or involving any Third Party or Governmental Authority with respect to the transactions contemplated by this Agreement, (ii) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated by this Agreement (including the Merger), (iii) otherwise take any other steps or actions to defend against, vacate, modify or suspend any injunction, or order, judgment, ruling, decree or decision of any Governmental Authority, including those relating to the foregoing clause (i) that would prevent or delay the consummation of the transactions contemplated by this Agreement (including the Merger), (iv) agree, propose, negotiate, offer, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (including by establishing a trust, licensing any Intellectual Property Rights (whether pursuant to an exclusive or nonexclusive license) 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 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, (v) terminate any existing relationships or contractual rights or obligations, (vi) take any action, or commit to take any action, or to accept any restriction, commitment or condition, involving Parent, the Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries, which would reasonably be expected to be materially financially burdensome to the business, operations, financial condition or results of operations on the business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries, in each case, following the Closing (any such action, restriction, commitment or condition, a “Burdensome Condition”), or (vii) otherwise offer to take or offer to commit to take any action that would limit Parent’s or agree) any of its Affiliates’ freedom of action with any Governmental Entity to stay, tollrespect to, or extend 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 applicable waiting period 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 action); provided, that any such action shall be conditioned upon and only effective following the Closing.
(d) The Company and Parent shall cooperate with one another in determining whether any actions, consents, approvals or waivers are required to be obtained from, or notices required to be given to, Third Parties under any applicable LawsContracts to which the Company or any of its Subsidiaries is a party in connection with this Agreement and the consummation of the transactions contemplated hereby (including the Merger). Notwithstanding anything to the contrary in this Agreement, in no event shall Parent, any Subsidiary of Parent (including Merger Sub), the Company or any Subsidiary of the Company be required to (and without the prior written consent of Parent, neither the Company nor any of its Subsidiaries shall) pay or make or commit to pay or make any fee, penalty or other (consideration or any other accommodation to any party to any such consent not Contract to be unreasonably withheldobtain any consent, conditioned, approval or delayed)waiver in connection with the transactions contemplated hereby.
(be) In Prior to the event that any administrative earlier of the Closing or judicial action the termination of this Agreement pursuant to Article 9, Parent shall not, and shall cause its Subsidiary not to, acquire or proceeding is instituted (agree to acquire by merging or threatened to be instituted) consolidating with, or by purchasing a Governmental Entity substantial portion of the assets of or private party challenging the Mergers equity in, or by any other transaction contemplated by this Agreementmanner, any Person or any other substantial portion thereof, in each case, if the entering into of a definitive agreement contemplated herebyrelating to or the consummation of such acquisition, merger, consolidation or purchase would reasonably be expected to prevent or materially delay the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Reasonable Best Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement (including those contained in this Section 5.09)Agreement, each of the parties hereto shall, and shall cause its Subsidiaries 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 in doing, all things necessary, properproper or advisable under applicable Laws to consummate the Merger and the other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act in respect of the transactions contemplated hereby as promptly as practicable and in any event within ten business days of 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 use its reasonable best efforts to take, or advisable cause to consummate be taken, all other actions consistent with this Section 6.4 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable.
(b) Each of Parent and make effective, and to satisfy all conditions tothe Company shall, in connection with the most expeditious manner practicable, efforts referenced in Section 6.4(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this AgreementAgreement under the HSR Act, including: or any other Antitrust Law, use its reasonable best efforts to (i) the obtaining of cooperate in all necessary Permitsrespects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or any proceeding by, any Governmental Entitiesinitiated by a private party; (ii) the 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 Mergers and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform keep the other party or parties hereto, as the case may be, informed in all material respects of any material communication from received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "DOJ") or any other Governmental Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second Merger Sub, on hereby; and (iii) permit the other handparty to review any material communication given by it to, receives a request for additional information and consult with each other in advance of any meeting or documentary material from conference with, the FTC, the DOJ or any such other domestic or foreign Governmental Entity or, in connection with respect any proceeding by a private party, with any other person, and to the transactions contemplated extent permitted by this Agreementthe FTC, then it shall use reasonable best efforts to makethe DOJ or such other applicable domestic or foreign Governmental Entity or other person, or cause to be made, as soon as reasonably practicable and after consultation with give the 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 party the opportunity to attend and participate in any meeting with any Governmental Entity in respect such meetings and conferences. For purposes 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby"Antitrust Law" means the Sherxxx Xxx, as amended, the Company shall cooperate in all respects with ParentClayxxx Xxx, Merger Subas amended, the HSR Act, the Federal Trade Commission Act, as amended, and Second Merger Sub and shall use its reasonable best efforts all other Laws that are designed or intended to contest and resist any such action prohibit, restrict or proceeding and to have vacated, lifted, reversed, regulate actions having the purpose or overturned any Order, whether temporary, preliminary, effect of monopolization or permanent, that is in effect and that prohibits, prevents, restraint of trade or restricts consummation lessening of the transactions contemplated by this Agreement.competition through merger or acquisition. 28 36
Appears in 1 contract
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.09)Agreement, CBS and Xxxxxxx each of the parties hereto shall, and shall cause its Subsidiaries to, 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 in doing, all things reasonably necessary, proper, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicablea timely manner, the Mergers and the other transactions contemplated by this Agreementthe Transaction Agreements, including: including (i) the obtaining of all necessary Permits, waivers, and actions or nonactions non-actions, waivers (including the Waiver), consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations registrations, declarations and filings (including filings with Governmental Entities) and the taking of all steps as may be reasonably necessary to obtain an approval approval, waiver (including the Waiver), order or waiver authorization from, or to avoid an action or proceeding by, any Governmental Entities; 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, (ii) the obtaining of all necessary material consents waivers, consents, 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 seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iiiiv) the execution and delivery of any additional instruments necessary to consummate the Mergers transactions contemplated by, and to fully carry out the purposes of, the Transaction Agreements. Xxxxxxx shall obtain the consent to assignment of this Agreement. The Company the microwave lease between the Limited Partnership and Parent shallDallas Main Center Limited Partnership and the lease with Crescent Real Estate, subject each as listed in Schedule 2.8 or, if such consents cannot be obtained, enter into replacement leases on terms not materially more disadvantageous to applicable LawCBS, promptly: (A) cooperate GTC, GCI and coordinate with the other Limited Partnership than those contained in the taking of the actions contemplated by clauses (i), (ii), current microwave lease and (iii) immediately above; and (B) supply the other with any information that may be reasonably required in order to effectuate the taking of such actionsCrescent Real Estate lease. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any material communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, or Second 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 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, 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity to stay, toll, or extend any applicable waiting period under any applicable Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Mergers or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, and Second Merger Sub and CBS shall use its reasonable best efforts to contest cause the shares of CBS Common Stock issued and resist any such action delivered to Xxxxxxx hereunder to be registered pursuant to an effective registration statement under Section 5 of the Securities Act to be registered or proceeding otherwise duly qualified under all appropriate state securities or "blue sky" laws or regulations, 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 be approved for listing on the transactions contemplated by this AgreementNYSE.
Appears in 1 contract
Samples: Merger Agreement (CBS Corp)
Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this Section 5.096.05), each of the parties 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 in doing, all things necessary, proper, or advisable to consummate and make effective, and to satisfy all conditions to, as promptly as reasonably practicable (and in any event no later than the most expeditious manner practicableEnd Date), the Merger and the other transactions contemplated by this Agreement, including: (i) except as otherwise provided in Section 2.13(b), the obtaining of all necessary Permits, waivers, and actions or nonactions from a Governmental Entities Authority and the making of all necessary registrations registrations, filings, and filings notifications (including filings with a Governmental EntitiesAuthority) 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 a Governmental EntitiesAuthority; (ii) except as otherwise provided in Section 2.13(b), the 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 Mergers Merger and to fully carry out the purposes of this Agreement. The Company and Parent shall, 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 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 parties hereto, as the case may be, of any material communication from any Governmental Entity Authority regarding any of the transactions contemplated by this Agreement. If the Company, on the one hand, or Parent, Merger Sub, Parent or Second Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entity Authority 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 EntityAuthority, provide the other party’s counsel with advance notice and the opportunity to attend and participate in any meeting with any Governmental Entity Authority 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 any of their respective Subsidiaries to commit to or agree) with any Governmental Entity Authority to stay, toll, or extend any applicable waiting period under any the HSR Act or other applicable Antitrust Laws, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned, or delayed).
(b) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity Authority or private party challenging the Mergers Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent, Merger Sub, Parent and Second Merger Sub and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any 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 anything in this Agreement to the contrary, none of Parent, Merger Sub, or any of their respective Affiliates shall be required to defend, contest, or resist any action or proceeding, whether judicial or administrative, or to take any action to have vacated, lifted, reversed, or overturned any Order, in connection with the transactions contemplated by this Agreement.
(c) Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub, or any of their respective 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 Company, Parent, 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 Company, the Surviving Company, Parent, 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 Company, the Surviving Company, Parent, Merger Sub, or any of their respective Subsidiaries; provided, that if requested by Parent, the Company 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 Company in the event the Closing occurs.
Appears in 1 contract
Samples: Merger Agreement
