Filings; Other Actions; Notification. (a) Subject to the terms and conditions set forth in this Agreement, each of Parent and the Company shall use their respective reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Antitrust Laws to consummate and make effective the Merger and the other Transactions as promptly as practicable, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, decisions, declarations, approvals and, expirations or terminations of waiting periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, any Governmental Entity in connection with any Antitrust Law, (ii) responding as promptly as practicable to any requests for information from any Governmental Entity, and contesting through litigation and resisting any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Merger and the Transactions under any applicable Law and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactions. (b) In furtherance and not in limitation of the foregoing, if and to the extent necessary to consummate the Merger before the Outside Date, Parent shall offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (i) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent or any of its affiliates, or (ii) the imposition of any limitation or regulation on the ability of Parent or any of its affiliates to freely conduct their business or own such assets (any of the actions described in the foregoing clauses (i) and (ii), a “Remedy Action”) except to the extent that such Remedy Actions would, or would reasonably be expected to, individually or in the aggregate, result in a Burdensome Condition; provided that any Remedy Action required to be taken shall be conditioned upon the consummation of the Transactions. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that Parent and its affiliates shall not have any obligation to litigate any suit challenging any of the Transactions as violative of any Antitrust Laws. (c) Prior to the Agreement Date, Parent and the Company have made appropriate filings of their respective Notification and Report forms as required by the HSR Act with respect to the Merger and the other Transactions. Subject to the terms and conditions of this Agreement, each of Parent and the Company shall (and shall cause their respective affiliates, if applicable, to) as promptly as reasonably practicable, make or submit all appropriate filings, notifications, applications, or similar documents required under any Foreign Antitrust Law applicable to the Merger and the other Transactions (as set forth in Section 5.04(c) of the Company Disclosure Letter). (d) Without limiting the generality of anything contained in this Section 5.04, each party (other than the Members’ Representative) shall, to the extent permitted by Law, (i) use reasonable best efforts to cooperate in all respects and consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding brought by a Governmental Entity or brought by a third party before any Governmental Entity, in each case, with respect to the Merger and the other Transactions, (iii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or Proceeding, (iv) promptly inform the other parties of any material communication to or from any Governmental Entity in connection with any such request, inquiry, investigation, action or Proceeding, (v) promptly furnish to the other party a copy of such communications, subject to a confidentiality agreement limiting disclosure to outside counsel and consultants retained by such counsel, and subject to redaction or withholding of documents as necessary to protect confidential and competitively sensitive information, (vi) use reasonable best efforts to consult in advance and cooperate with the other parties and consider in good faith the views of the other parties in connection with any substantive communication, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such request, inquiry, investigation, action or Proceeding, and (vii) except as may be prohibited by any Governmental Entity, permit authorized Representatives of the other parties to be present at each meeting and telephone or video conference to the extent relating to such request, inquiry, investigation, action or Proceeding. Each party (other than the Members’ Representative) shall supply as promptly as practicable and advisable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including any “second request” under the HSR Act, received by any party or any of their respective subsidiaries from any Governmental Entity in connection with such applications or filings for the Merger and the other Transactions. Subject to applicable Law relating to the exchange of information and this Section 5.04(d) and Section 5.04(e), Parent shall, in consultation with the Company, have the right (i) to determine strategy and direction of all matters with any Governmental Entity and (ii) to review in advance, and direct the revision of, any filing, application, notification or other document to be submitted by the Company to any Governmental Entity under any applicable Law. Parent shall pay all filing fees under the HSR Act and any filing fees under Foreign Antitrust Laws. (e) Parent and the Company shall use reasonable best efforts to consult in advance with each other and in good faith take each other’s views into account prior to taking any material substantive position in any written submissions or, to the extent practicable, discussions with Governmental Entities with respect to the Merger and this Agreement. Parent shall not commit to or agree with any Governmental Entity to not consummate the Merger and the other Transactions for any period of time, or to stay, toll or extend, directly or indirectly, any applicable waiting period under the HSR Act or other applicable Foreign Antitrust Law, and shall not pull and refile any filing made under the HSR Act, in each case, without prior consultation with the Company and in good faith taking the Company’s views into account. (f) During the Pre-Closing Period, Parent agrees that it shall not, and shall not permit any of its affiliates to, directly or indirectly, acquire or agree to acquire any assets or a 25% or greater ownership interest in a business or any Person, whether by merger, consolidation, purchasing a substantial portion of the assets of or equity in any Person or by any other manner or engage in any other transaction or take any other action, if the entering into of an agreement relating to or the consummation of such acquisition, merger, consolidation or purchase or other transaction or action would reasonably be expected to (i) impose any delay in the expiration or termination of any applicable waiting period or impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, clearance, approval or order of a Governmental Entity necessary to consummate the Merger and the Transactions, including any approvals and expiration of waiting periods pursuant to the HSR Act or any other applicable Foreign Antitrust Law, (ii) increase the risk of any Governmental Entity entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger and the Transactions or (iii) otherwise delay or impede the consummation of the Merger and the Transactions. (g) Until the date that is three (3) business days prior to the Closing Date, the Company may deliver to Parent a revised Allocation Schedule to reflect any issuance of Company Common Shares upon the exercise of Company Options outstanding on the Agreement Date, upon which such revised Allocation Schedule shall be deemed to be the Allocation Schedule for all purposes hereunder; provided that in no event shall any change to the Allocation Schedule result in any increase in the total consideration payable by Parent under this Agreement or the Contingent Payment Agreement, and in respect of Company Options as provided in Section 1.08(c), collectively. (h) During the Pre-Closing Period, whenever feasible and to the extent not prohibited by applicable Law, the Company shall promptly furnish Parent with, or provide Parent reasonable access to (i) meeting minutes from any meetings or scheduled teleconferences with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product and (ii) written correspondence (excluding immaterial communications) with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product. (i) On or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall distribute to each Company Optionholder a notice (the “Optionholder Notice”) in substantially the form attached hereto as Exhibit I to solicit their signature to the Option Treatment Agreement. Further, on or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall deliver a Promised Equity Cancellation Agreement to each Promised Equity Grantee.
Appears in 1 contract
Sources: Merger Agreement (CorMedix Inc.)
Filings; Other Actions; Notification. (a) Subject to Each of the terms and conditions set forth in this Agreement, each of Parent and the Company Parties shall use (and shall cause its respective Subsidiaries, officers and directors, and shall use reasonable best efforts to cause its Affiliates, attorneys, accountants and Representatives, to use) their respective reasonable best efforts as soon as practicable to take, take or cause to be taken, taken all actions, and to file, do or cause to be fileddone all things, all documents 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 on its part under applicable Antitrust Laws Law, this Agreement and the Ancillary Agreements to consummate and make effective the Merger and any other Transaction contemplated by this Agreement or the other Transactions as promptly as practicableAncillary Agreements, including (i) preparing and filing with the obtaining of SEC the filings described in Section 5.11 and all necessary actions amendments or nonactionssupplements to those filings; (ii) preparing, providing and filing all documentation and other information to effect all necessary notices, reports, applications, filings and other submissions, and to obtain as promptly as is practicable all consents, approvals, waivers, consentslicenses, clearancespermits, authorizations, registrations, qualifications, decisions, declarationsdeterminations or other permissions or actions necessary or advisable to be obtained from any Governmental Authority or any other Person in order to consummate the Merger or any other transaction contemplated by this Agreement or the Ancillary Agreements; (iii) providing all such information concerning such Party, approvals andits Subsidiaries and its officers, expirations or terminations of waiting periods from Governmental Entities directors, employees, partners and the making of all necessary registrations and filings and the taking of all steps Affiliates as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, any Governmental Entity reasonably requested in connection with any Antitrust Lawof the foregoing; and (iv) avoiding the issuance or entry of, (ii) responding as promptly as practicable to any requests for information from any Governmental Entityor have vacated or terminated, and contesting through litigation and resisting any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, order, injunction, judgment, injunction decision or other order (whether temporarydetermination that would, preliminary in whole or permanent) that restrictsin part, prevents restrain, prevent or prohibits delay the consummation of the Merger or any other transaction contemplated by this Agreement or the Ancillary Agreements; provided, that Alkermes shall not be required to offer, take or agree to any actions in connection with, or agree to, any hold separate order, sale, divestiture or disposition of plants, assets or businesses (of Alkermes or the Business) and the Transactions under Elan Parties shall not do any applicable Law and of the foregoing without the consent of Alkermes (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactionsacting in its sole discretion).
(b) In furtherance and not in limitation Each of the foregoingParties shall cooperate regarding, if and keep the other Parties reasonably apprised of the status of, matters relating to the extent necessary to consummate completion of the Merger before the Outside Date, Parent shall offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, transactions contemplated hereby and work cooperatively in connection (i) the salewith obtaining all necessary notices, divestiturereports, license applications, filings and other submissions, and to obtain as promptly as is practicable all consents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications, decisions, determinations or other disposition permissions or holding separate (through the establishment of a trust or otherwise) actions of any assets or categories of assets of Parent or any of its affiliates, or Governmental Authority and (ii) the imposition all other communications with any Governmental Authority (which for purposes of this Section 5.2 includes staff of Governmental Authorities and any limitation or regulation on the ability elected member of Parent or any of its affiliates to freely conduct a Governmental Authority and their business or own such assets (any of the actions described in the foregoing clauses (istaff) and (ii), a “Remedy Action”) except to the extent that such Remedy Actions would, or would reasonably be expected to, individually or in the aggregate, result in a Burdensome Condition; provided that any Remedy Action required to be taken shall be conditioned upon the consummation of the Transactions. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that Parent and its affiliates shall not have any obligation to litigate any suit challenging any of the Transactions as violative of any Antitrust Laws.
(c) Prior to the Agreement Date, Parent and the Company have made appropriate filings of their respective Notification and Report forms as required by the HSR Act with respect to the Merger and or any of the other Transactions. Subject to the terms and conditions of transactions contemplated by this Agreement. In that regard, each of Parent and Party shall: (A) promptly notify the Company shall (and shall cause their respective affiliatesother Parties of, and, if applicablein writing, to) as promptly as reasonably practicablefurnish the others with copies of (or, make in the case of oral communications, advise the others orally of), any communications from or submit all appropriate filings, notifications, applications, or similar documents required under any Foreign Antitrust Law applicable to the Merger and the other Transactions (as set forth in Section 5.04(c) of the Company Disclosure Letter).
(d) Without limiting the generality of anything contained in this Section 5.04, each party (other than the Members’ Representative) shall, to the extent permitted by Law, (i) use reasonable best efforts to cooperate in all respects and consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding brought by a Governmental Entity or brought by a third party before any Governmental Entity, in each case, Authority with respect to the Merger and or any of the other Transactions, transactions contemplated by this Agreement; (iiiB) keep permit the other parties informed as Parties to the status of any such requestreview and discuss in advance, inquiry, investigation, action or Proceeding, (iv) promptly inform the other parties of any material communication to or from any Governmental Entity in connection with any such request, inquiry, investigation, action or Proceeding, (v) promptly furnish to the other party a copy of such communications, subject to a confidentiality agreement limiting disclosure to outside counsel and consultants retained by such counsel, and subject to redaction or withholding of documents as necessary to protect confidential and competitively sensitive information, (vi) use reasonable best efforts to consult in advance and cooperate with the other parties and consider in good faith the views of the others in connection with, any proposed written (or any proposed oral) communication with any such Governmental Authority with respect to the Merger or any of the other parties transactions contemplated by this Agreement; (C) not participate in any meeting or oral communication with any such Governmental Authority with respect to the Merger or any of the other transactions contemplated by this Agreement unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Authority, gives the other Parties the opportunity to attend and participate thereat; (D) furnish the other Parties with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof, including summaries of any meetings or communications the others are not permitted to participate in pursuant to clause (C) above) between it and any such Governmental Authority with respect to the Merger or any of the other transactions contemplated by this Agreement (except that the Parties shall only be required to share with (and solely for review by) outside counsel of the other Parties their respective Item 4(c) documents submitted with their HSR Act filings or similar documents); and (E) furnish the other Parties with such necessary information and reasonable assistance as the others may reasonably request in connection with its preparation of necessary filings or submissions of information to any substantive communicationsuch Governmental Authority. Each Party may, analysisas each deems advisable and necessary, appearancereasonably designate any competitively sensitive material provided to the other Parties under this Section 5.2 as “outside counsel only.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, presentationofficers, memorandumor directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
(c) Without limiting the generality of the undertakings provided in this Section 5.2, brief, argument, opinion the Parties hereto agree to take or proposal cause to be made taken the following actions: (i) the prompt provision to any and all federal, supranational, state, local or submitted in connection non-U.S. Governmental Authority with jurisdiction over enforcement of any such request, inquiry, investigation, action or Proceeding, applicable antitrust Laws (“Governmental Antitrust Authority”) of information and (vii) except as may be prohibited by any Governmental Entity, permit authorized Representatives of the other parties to be present at each meeting and telephone or video conference to the extent relating to such request, inquiry, investigation, action or Proceeding. Each party (other than the Members’ Representative) shall supply as promptly as practicable and advisable such information, documentation, other material or testimony that may be documents requested by any Governmental EntityAntitrust Authority or necessary, proper or advisable to permit consummation of the Merger, the Reorganization or any other transaction contemplated by this Agreement or the Ancillary Agreements, and, in any event, the Parties will use their reasonable best efforts to make all filings with such Governmental Antitrust Authorities (including any “second request” all filings required under the HSR Act, received by any party with the Federal Trade Commission or any the United States Department of their respective subsidiaries Justice) within ten (10) Business Days from any Governmental Entity in connection with such applications or filings for the Merger and the other Transactions. Subject to applicable Law relating to the exchange of information and this Section 5.04(d) and Section 5.04(e), Parent shalldate hereof (or, in consultation the case of filings required with other Governmental Antitrust Authorities, within ten (10) Business Days following the Company, have the right (iidentification by a Party that such filing is so required) to determine strategy and direction of all matters with any Governmental Entity and (ii) subject to review in advancethe proviso of Section 5.2(a), and direct the revision of, any filing, application, notification or other document to be submitted by the Company to any Governmental Entity under any applicable Law. Parent shall pay all filing fees under the HSR Act and any filing fees under Foreign Antitrust Laws.
(e) Parent and the Company shall use reasonable best efforts to consult take promptly, in advance with each the event that any permanent or preliminary injunction or other and in good faith take each other’s views into account prior decree, order, judgment, decision or determination is entered or issued, or becomes reasonably foreseeable to taking any material substantive position be entered or issued, in any written submissions orlawsuit, to the extent practicableinvestigation, discussions with Governmental Entities with respect to inquiry, action or proceeding that would make consummation, in whole or in part, of the Merger and this Agreement. Parent shall not commit to or agree with any Governmental Entity to not consummate the Merger and the other Transactions for any period of time, or to stay, toll or extend, directly or indirectly, any applicable waiting period under the HSR Act or other applicable Foreign Antitrust Law, and shall not pull and refile any filing made under the HSR Act, in each case, without prior consultation with the Company and in good faith taking the Company’s views into account.
(f) During the Pre-Closing Period, Parent agrees that it shall not, and shall not permit any of its affiliates to, directly or indirectly, acquire or agree to acquire any assets or a 25% or greater ownership interest in a business or any Person, whether by merger, consolidation, purchasing a substantial portion of the assets of or equity in any Person or by any other manner or engage in any other transaction or take any other action, if the entering into of an agreement relating to contemplated by this Agreement or the consummation of such acquisition, merger, consolidation Ancillary Agreements unlawful or purchase or other transaction or action would reasonably be expected to (i) impose any delay in the expiration or termination of any applicable waiting period or impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, clearance, approval or order of a Governmental Entity necessary to consummate the Merger and the Transactions, including any approvals and expiration of waiting periods pursuant to the HSR Act or any other applicable Foreign Antitrust Law, (ii) increase the risk of any Governmental Entity entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order decree, decision, determination or judgment that would prevent or delay, restrainin whole or in part, prevent, enjoin or otherwise prohibit consummation of the Merger and the Transactions or (iii) otherwise delay or impede the consummation of the Merger and the Transactions.
(g) Until the date that is three (3) business days prior to the Closing Date, the Company may deliver to Parent a revised Allocation Schedule to reflect any issuance of Company Common Shares upon the exercise of Company Options outstanding on the Agreement Date, upon which such revised Allocation Schedule shall be deemed to be the Allocation Schedule for all purposes hereunder; provided that in no event shall any change to the Allocation Schedule result in any increase in the total consideration payable other transaction contemplated by Parent under this Agreement or the Contingent Payment AgreementAncillary Agreements, any and in respect all steps (including the taking of Company Options as provided in Section 1.08(c), collectively.
(h) During the Pre-Closing Period, whenever feasible and to the extent not prohibited by applicable Lawany appeal, the Company shall promptly furnish Parent with, posting of any bond or provide Parent reasonable access to (i) meeting minutes from any meetings or scheduled teleconferences with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product and taking of the steps contemplated by clause (ii)) written correspondence (excluding immaterial communications) with necessary to vacate, modify or suspend such injunction, decree, order, judgment, decision or determination so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement and the FDA or any similar Regulatory Authority with respect to any Company Licensed ProductAncillary Agreements.
(i) On or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall distribute to each Company Optionholder a notice (the “Optionholder Notice”) in substantially the form attached hereto as Exhibit I to solicit their signature to the Option Treatment Agreement. Further, on or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall deliver a Promised Equity Cancellation Agreement to each Promised Equity Grantee.
Appears in 1 contract
Filings; Other Actions; Notification. (a) Subject to the terms and conditions set forth in this Agreement, each of Parent the Company and the Company Purchaser shall cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to take, take or cause to be taken, taken all actions, to file, and do or cause to be fileddone all things, all documents and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable on its part under this Agreement and applicable Antitrust Laws (i) to consummate and make effective the Merger and the other Transactions transactions contemplated by this Agreement as promptly soon as practicable, including (i) the obtaining of preparing and filing as promptly as practicable all documentation to effect all necessary actions notices, reports and other filings and to obtain as promptly as practicable the expiration or nonactionstermination of any applicable waiting period, and (ii) to obtain all necessary actions, non-actions, waivers, consents, clearancesregistrations, decisionsapprovals, declarations, approvals and, expirations or terminations of waiting periods from Governmental Entities permits and the making of all necessary registrations and filings and the taking of all steps as authorizations that may be required, necessary or advisable to obtain be obtained from any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, third party and/or any Governmental Entity Authority in connection with any Antitrust Law, (ii) responding as promptly as practicable to any requests for information from any Governmental Entity, and contesting through litigation and resisting any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Merger and the Transactions under any applicable Law and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and or any of the other Transactions.
transactions contemplated by this Agreement, under applicable Law. Notwithstanding anything to the contrary in this Agreement, in no event shall the Purchaser or any of its Affiliates be obligated in connection with the receipt of any consent, approval, ruling or authorization from any Governmental Authority in connection with this Agreement, to (a) 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 any assets of the Purchaser’s business or of the Purchaser and its Affiliates, or otherwise offer to take or offer to commit to take any action (including, without limitation, any action that limits its freedom of action, ownership or control with respect to, or its ability to retain or hold, any of the businesses, assets, product lines, properties or services of the Purchaser’s business, the Purchaser or any of its Affiliates) which it is lawfully capable of taking and if the offer is accepted, take or commit to take such action, or (b) In furtherance take or omit to take any action that would reasonably be expected to result in a material and not adverse impact on the Company and its Subsidiaries, or the Purchaser and its Subsidiaries (including the Surviving Corporation and its Subsidiaries following the Effective Time), in limitation each case taken as a whole, or any of the foregoingPurchaser’s Affiliates, in each case as may be required in order to avoid the commencement of any action or proceeding to prohibit any transaction contemplated by this Agreement, or if and already commenced, to avoid the extent necessary entry of, or to consummate effect the Merger dissolution of, any injunction, temporary restraining order or other order in any action or proceeding. The Company shall not, without the prior written consent of the Purchaser, publicly or before the Outside Dateany Governmental Authority or other third party, Parent shall offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, (i) the any sale, divestiture, license disposition, prohibition or limitation or other disposition or holding separate (through the establishment action of a trust or otherwise) of any assets or categories of assets of Parent or any of its affiliates, or (ii) the imposition of any limitation or regulation on the ability of Parent or any of its affiliates to freely conduct their business or own such assets (any of the actions type described in the foregoing clauses (i) and (ii), a “Remedy Action”) except to the extent that such Remedy Actions would, or would reasonably be expected to, individually or in the aggregate, result in a Burdensome Condition; provided that any Remedy Action required to be taken shall be conditioned upon the consummation of the Transactions. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that Parent and its affiliates shall not have any obligation to litigate any suit challenging any of the Transactions as violative of any Antitrust Lawsthis subparagraph.
(cb) Prior Subject to applicable Laws relating to the Agreement Dateexchange of information, Parent and the Company have made appropriate filings of their respective Notification and Report forms as required by the HSR Act with respect to the Merger and the other Transactions. Subject to the terms and conditions of this Agreement, each of Parent Purchaser and the Company shall (have the right to review in advance, and shall cause their respective affiliates, if applicable, to) as promptly as reasonably practicable, make or submit all appropriate filings, notifications, applications, or similar documents required under any Foreign Antitrust Law applicable to the Merger and the other Transactions (as set forth in Section 5.04(c) of the Company Disclosure Letter).
(d) Without limiting the generality of anything contained in this Section 5.04, each party (other than the Members’ Representative) shall, to the extent permitted by Law, (i) use reasonable best efforts to cooperate in all respects and practicable each will consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding brought by a Governmental Entity or brought by a third party before any Governmental Entity, in each case, with respect to the Merger and the other Transactions, (iii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or Proceeding, (iv) promptly inform the other parties of any material communication to or from any Governmental Entity in connection with any such request, inquiry, investigation, action or Proceeding, (v) promptly furnish to the other party a copy of such communications, subject to a confidentiality agreement limiting disclosure to outside counsel and consultants retained by such counsel, and subject to redaction or withholding of documents as necessary to protect confidential and competitively sensitive information, (vi) use reasonable best efforts to consult in advance and cooperate with the other parties on and consider in good faith the views of the other parties in connection with any substantive communicationwith, analysisall of non-confidential information relating to the Purchaser or the Company, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such request, inquiry, investigation, action or Proceedingas the case may be, and (vii) except as may be prohibited by any Governmental Entity, permit authorized Representatives of the other parties to be present at each meeting and telephone or video conference to the extent relating to such request, inquiry, investigation, action or Proceeding. Each party (other than the Members’ Representative) shall supply as promptly as practicable and advisable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including any “second request” under the HSR Act, received by any party or any of their respective subsidiaries from Affiliates, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity Authority in connection with such applications or filings for the Merger and the other Transactionstransactions contemplated by this Agreement. Subject to applicable Law In exercising the foregoing rights, each of the Company and the Purchaser shall act reasonably and as promptly as practicable.
(c) The Company and the Purchaser each shall keep the other apprised of the status of matters relating to completion of the exchange transactions contemplated hereby, including promptly furnishing the other with copies of information and this Section 5.04(d) and Section 5.04(e), Parent shall, in consultation with the portions of any notices or other communications received by the Purchaser or the Company, have as the right (i) to determine strategy and direction of all matters with case may be, from any third party or any Governmental Entity and (ii) to review in advance, and direct the revision of, any filing, application, notification or other document to be submitted by the Company to any Governmental Entity under any applicable Law. Parent shall pay all filing fees under the HSR Act and any filing fees under Foreign Antitrust Laws.
(e) Parent and the Company shall use reasonable best efforts to consult in advance with each other and in good faith take each other’s views into account prior to taking any material substantive position in any written submissions or, to the extent practicable, discussions with Governmental Entities Authority with respect to the Merger and the other transactions contemplated by this Agreement. Parent Neither the Company nor the Purchaser shall, nor shall not commit to they permit any of their Subsidiaries or agree Representatives to, participate in any meeting with any Governmental Entity Authority in respect of any filings, investigation or other inquiry with respect to not consummate the Merger and the other Transactions for any period of time, or to stay, toll or extend, directly or indirectly, any applicable waiting period under the HSR Act or other applicable Foreign Antitrust Law, and shall not pull and refile any filing made under the HSR Act, in each case, without prior consultation transactions contemplated hereby unless they consult with the Company and other parties in good faith taking the Company’s views into account.
(f) During the Pre-Closing Periodadvance and, Parent agrees that it shall not, and shall not permit any of its affiliates to, directly or indirectly, acquire or agree to acquire any assets or a 25% or greater ownership interest in a business or any Person, whether by merger, consolidation, purchasing a substantial portion of the assets of or equity in any Person or by any other manner or engage in any other transaction or take any other action, if the entering into of an agreement relating to or the consummation of such acquisition, merger, consolidation or purchase or other transaction or action would reasonably be expected to (i) impose any delay in the expiration or termination of any applicable waiting period or impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, clearance, approval or order of a Governmental Entity necessary to consummate the Merger and the Transactions, including any approvals and expiration of waiting periods pursuant to the HSR Act or any other applicable Foreign Antitrust Law, (ii) increase the risk of any Governmental Entity entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger and the Transactions or (iii) otherwise delay or impede the consummation of the Merger and the Transactions.
(g) Until the date that is three (3) business days prior to the Closing Date, the Company may deliver to Parent a revised Allocation Schedule to reflect any issuance of Company Common Shares upon the exercise of Company Options outstanding on the Agreement Date, upon which such revised Allocation Schedule shall be deemed to be the Allocation Schedule for all purposes hereunder; provided that in no event shall any change to the Allocation Schedule result in any increase in the total consideration payable by Parent under this Agreement or the Contingent Payment Agreement, and in respect of Company Options as provided in Section 1.08(c), collectively.
(h) During the Pre-Closing Period, whenever feasible and to the extent not prohibited permitted by applicable Lawsuch Governmental Authority, give the Company shall promptly furnish Parent with, or provide Parent reasonable access other parties the opportunity to (i) meeting minutes from any meetings or scheduled teleconferences with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product attend and (ii) written correspondence (excluding immaterial communications) with the FDA or any similar Regulatory Authority with respect to any Company Licensed Productparticipate thereat.
(i) On or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall distribute to each Company Optionholder a notice (the “Optionholder Notice”) in substantially the form attached hereto as Exhibit I to solicit their signature to the Option Treatment Agreement. Further, on or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall deliver a Promised Equity Cancellation Agreement to each Promised Equity Grantee.
Appears in 1 contract
Sources: Merger Agreement (Primo Water Corp)
Filings; Other Actions; Notification. (a) Subject to the terms The Company and conditions set forth in this Agreement, each of Parent shall (and the Company shall use cause their respective reasonable best efforts to take, Subsidiaries to) cooperate with each other and take or cause to be taken, taken all actions, to file, and do or cause to be fileddone all things, all documents 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 on its part under this Agreement and applicable Antitrust Laws to consummate and make effective the Merger and the other Transactions transactions contemplated by this Agreement as promptly soon as practicable, including using their best efforts to accomplish the following: (i) the satisfaction of the conditions set forth in Article VII, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, decisions, declarations, approvals and, expirations or terminations of waiting periods from Governmental Entities and the making of all necessary registrations Permits, Approvals and filings and the taking of all steps as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, any Governmental Entity in connection with any Antitrust Law, (ii) responding as promptly as practicable to any requests for information from any Governmental Entity, and contesting through litigation and resisting any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Merger and the Transactions under any applicable Law Orders and (iii) the execution and delivery defending of any additional instruments necessary Actions challenging this Agreement or seeking to consummate prevent, delay or impair the Merger and consummation of the other Transactionstransactions contemplated hereby, including seeking to have any Order vacated or reversed.
(b) In furtherance Parent shall, upon request by the Company, furnish it with all information concerning itself, its Subsidiaries, directors, officers and not stockholders and such other matters as may be reasonably necessary or advisable in limitation connection with the Information Statement or any other registration, declaration, filing, notice or report made by or on behalf of the foregoing, if and to the extent necessary to consummate the Merger before the Outside Date, Parent shall offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (i) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent Company or any of its affiliatesrespective Subsidiaries to any third party, or (ii) including any Governmental Entity, in connection with the imposition of any limitation or regulation on Merger and the ability of Parent or any of its affiliates to freely conduct their business or own such assets (any of the actions described in the foregoing clauses (i) and (ii), a “Remedy Action”) except to the extent that such Remedy Actions would, or would reasonably be expected to, individually or in the aggregate, result in a Burdensome Condition; provided that any Remedy Action required to be taken shall be conditioned upon the consummation of the Transactions. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that Parent and its affiliates shall not have any obligation to litigate any suit challenging any of the Transactions as violative of any Antitrust Lawstransactions contemplated by this Agreement.
(c) Prior Subject to the Agreement Date, Parent applicable Law and the instructions of any Governmental Entity, the Company have made appropriate filings and Parent each shall keep the other apprised of their respective Notification and Report forms the status of matters relating to completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other communications received by Parent or the Company, as required by the HSR Act case may be, or any of its Subsidiaries, from any Governmental Entity with respect to the Merger and the other Transactions. Subject to the terms and conditions of this Agreement, each of Parent and the Company shall (and shall cause their respective affiliates, if applicable, to) as promptly as reasonably practicable, make or submit all appropriate filings, notifications, applications, or similar documents required under any Foreign Antitrust Law applicable to the Merger and the other Transactions (as set forth in Section 5.04(c) of the Company Disclosure Letter)such transactions.
(d) Without limitation of the foregoing, Parent and the Company undertake and agree to file as soon as practicable (and in any event within ten (10) Business Days after the date hereof), if required by law, a Notification and Report Form under the HSR Act with the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”). If Parent or the Company reasonably determine that it is so required, Parent and Company shall, promptly after the date of this Agreement, prepare and file notifications required under any applicable Foreign Antitrust Laws or regulations thereunder in connection with the Merger.
(e) Without limitation of the above, Parent and the Company undertake and agree to file as soon as practicable (and in any event within fifteen (15) Business Days after the date hereof) with the Committee on Foreign Investment in the United States (“CFIUS”) a joint voluntary notice under the Exon-▇▇▇▇▇▇ Amendment, with respect to the transaction contemplated by this Agreement. The parties agree to provide CFIUS with any additional or supplemental information requested by CFIUS or its member agencies during the Exon-▇▇▇▇▇▇ Amendment review process. The parties, in cooperation with each other, shall take all commercially reasonable steps advisable, necessary or desirable to finally and successfully complete the Exon-▇▇▇▇▇▇ Amendment review process as promptly as practicable.
(f) Without limitation of the above, Parent and the Company undertake and agree to file (i) as soon as practicable (and in any event within fifteen (15) Business Days after the date hereof) with the United States Department of State Directorate of Defense Trade Controls (“DDTC”) the requisite notifications under ITAR and (ii) within five (5) Business Days after the date hereof with the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) a notice in connection with the Company’s application to renew its license to be a manufacturer of destructive devices and certain other materials, which expires on September 1, 2006, referencing this Agreement pursuant to which Parent will acquire the Company, and cooperate with any requests or directions of ATF regarding the filing of related or supplemental materials.
(g) Without limiting the generality of anything contained in the undertakings pursuant to this Section 5.046.4 (but subject to the limitations provided in clause (ii) below with respect to Specified Efforts), each party (other than of the Members’ Representative) shall, Company and Parent agrees to take or cause to be taken the extent permitted by Law, following actions: (i) use reasonable best efforts to cooperate in all respects and consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding brought request by a Governmental Entity or brought by a third party before any Governmental Entity, in each case, with respect to the Merger and the other Transactions, (iii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or Proceeding, (iv) promptly inform the other parties of any material communication to or from any Governmental Entity in connection with jurisdiction over enforcement of any such request, inquiry, investigation, action antitrust or Proceeding, (v) promptly furnish competition Laws applicable to the other party a copy of such communications, subject to a confidentiality agreement limiting disclosure to outside counsel Company or Parent (“Government Antitrust Entity”) for additional non-privileged information and consultants retained documents requested by such counselGovernment Antitrust Entity or that are necessary, and subject proper or advisable to redaction or withholding of documents as necessary to protect confidential and competitively sensitive information, (vi) use reasonable best efforts to consult in advance and cooperate with the other parties and consider in good faith the views permit consummation of the other parties in connection with any substantive communication, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such request, inquiry, investigation, action or Proceeding, and (vii) except as may be prohibited transactions contemplated by any Governmental Entity, permit authorized Representatives of the other parties to be present at each meeting and telephone or video conference to the extent relating to such request, inquiry, investigation, action or Proceeding. Each party (other than the Members’ Representative) shall supply as promptly as practicable and advisable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including any “second request” under the HSR Act, received by any party or any of their respective subsidiaries from any Governmental Entity in connection with such applications or filings for the Merger and the other Transactions. Subject to applicable Law relating to the exchange of information and this Section 5.04(d) and Section 5.04(e), Parent shall, in consultation with the Company, have the right (i) to determine strategy and direction of all matters with any Governmental Entity Agreement and (ii) to review in advance, and direct the revision of, any filing, application, notification or other document to be submitted by the Company to any Governmental Entity under any applicable Law. Parent shall pay all filing fees under the HSR Act and any filing fees under Foreign Antitrust Laws.
(e) Parent and the Company shall prompt use reasonable best efforts to consult in advance with each other and in good faith take each other’s views into account prior to taking any material substantive position in any written submissions or, to the extent practicable, discussions with Governmental Entities with respect to the Merger and this Agreement. Parent shall not commit to or agree with any Governmental Entity to not consummate the Merger and the other Transactions for any period of time, or to stay, toll or extend, directly or indirectly, any applicable waiting period under the HSR Act or other applicable Foreign Antitrust Law, and shall not pull and refile any filing made under the HSR Act, in each case, without prior consultation with the Company and in good faith taking the Company’s views into account.
(f) During the Pre-Closing Period, Parent agrees that it shall not, and shall not permit any of its affiliates to, directly or indirectly, acquire or agree Specified Efforts to acquire any assets or a 25% or greater ownership interest in a business or any Person, whether by merger, consolidation, purchasing a substantial portion of avoid the assets of or equity in any Person or by any other manner or engage in any other transaction or take any other action, if the entering into of an agreement relating to or the consummation of such acquisition, merger, consolidation or purchase or other transaction or action would reasonably be expected to (i) impose any delay in the expiration or termination entry of any applicable waiting period or impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, clearance, approval or order of a Governmental Entity necessary to consummate the Merger and the Transactions, including any approvals and expiration of waiting periods pursuant to the HSR Act or any other applicable Foreign Antitrust Law, (ii) increase the risk of any Governmental Entity entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order decree, decision, determination or judgment Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger transactions contemplated by this Agreement. For purposes of this Section 6.4(g), “Specified Efforts” shall mean all efforts that an acquiring or selling entity (as the case may be) in an acquisition such as the one contemplated herein would make if using best efforts to avoid the entry of such an Order, including the devotion of all required management time and the Transactions or (iii) engagement and payment of its Representatives to assist in such efforts but otherwise delay or impede excluding the consummation payment of any sum material to Parent’s acquisition of the Merger and Company to avoid the Transactionsentry of such Order.
(g) Until the date that is three (3) business days prior to the Closing Date, the Company may deliver to Parent a revised Allocation Schedule to reflect any issuance of Company Common Shares upon the exercise of Company Options outstanding on the Agreement Date, upon which such revised Allocation Schedule shall be deemed to be the Allocation Schedule for all purposes hereunder; provided that in no event shall any change to the Allocation Schedule result in any increase in the total consideration payable by Parent under this Agreement or the Contingent Payment Agreement, and in respect of Company Options as provided in Section 1.08(c), collectively.
(h) During the Pre-Closing Period, whenever feasible and to the extent not prohibited by applicable Law, the Company shall promptly furnish Parent with, or provide Parent reasonable access to (i) meeting minutes from any meetings or scheduled teleconferences with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product and (ii) written correspondence (excluding immaterial communications) with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product.
(i) On or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall distribute to each Company Optionholder a notice (the “Optionholder Notice”) in substantially the form attached hereto as Exhibit I to solicit their signature to the Option Treatment Agreement. Further, on or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall deliver a Promised Equity Cancellation Agreement to each Promised Equity Grantee.
Appears in 1 contract
Filings; Other Actions; Notification. (a) Subject to the terms and conditions set forth in this Agreement, each of Parent The Company and the Company Buyer Parties each shall use their respective reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and from the date hereof until the Effective Time cooperate with the other parties in doing, and use their commercially reasonable efforts to cause to be done all things necessary, proper or advisable on its part under this Agreement and applicable Antitrust Laws to consummate and make effective the Merger and the other Transactions transactions contemplated by this Agreement as promptly soon as practicable, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, decisions, declarations, approvals and, expirations or terminations of waiting periods from Governmental Entities preparing and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, any Governmental Entity in connection with any Antitrust Law, (ii) responding filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any requests for information from third party and/or any Governmental Entity, and contesting through litigation and resisting any actionincluding filings under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other in order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Merger and the Transactions under any applicable Law and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and the other Transactions.
(b) In furtherance and not in limitation of the foregoing, if and to the extent necessary to consummate the Merger before the Outside Date, Parent shall offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (i) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent or any of its affiliates, or (ii) the imposition of any limitation or regulation on the ability of Parent or any of its affiliates to freely conduct their business or own such assets (any of the actions described in the foregoing clauses (i) and (ii), a “Remedy Action”) except to other transactions contemplated by this Agreement. To the extent that such Remedy Actions wouldreasonably practicable, or would reasonably be expected toall discussions, individually or in telephone calls and meetings with a Governmental Entity regarding the aggregate, result in a Burdensome Condition; provided that any Remedy Action required to be taken Merger shall be conditioned upon the consummation include representatives of the Transactions. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that Parent and its affiliates shall not have any obligation to litigate any suit challenging any of the Transactions as violative of any Antitrust Laws.
(c) Prior to the Agreement Date, Parent both Ciena and the Company have made appropriate filings of their respective Notification and Report forms as required by the HSR Act with respect to the Merger and the other TransactionsCompany. Subject to the terms and conditions of this Agreement, each of Parent and the Company shall (and shall cause their respective affiliates, if applicable, to) as promptly as reasonably practicable, make or submit all appropriate filings, notifications, applications, or similar documents required under any Foreign Antitrust Law applicable to the Merger and the other Transactions (as set forth in Section 5.04(c) of the Company Disclosure Letter).
(d) Without limiting the generality of anything contained in this Section 5.04, each party (other than the Members’ Representative) shall, to the extent permitted by Law, (i) use reasonable best efforts to the parties will consult and cooperate in all respects and consult with each other in connection with any filing analyses, appearances, presentations, memoranda, briefs, arguments, and proposals made or submission submitted to any Governmental Entity regarding the Merger by or on behalf of any party. Ciena and the Company will each first advise and consult with the other regarding any understandings, undertakings, agreements (oral or written) or arguments that the first party proposes to make with or to or enter into with any Governmental Entities having jurisdiction over or rights of review with respect to antitrust Laws, in connection with any investigation or other inquirythe Merger, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other parties prompt notice each of the making or commencement of Buyer Parties and the Company shall use their reasonable best efforts to seek to resolve any request, inquiry, investigation, action or Proceeding brought objections to the Merger as may be asserted by a Governmental Entity under applicable Laws. Notwithstanding, the foregoing, nothing herein shall require either of the Buyer Parties, in connection with the receipt of any regulatory approval, to agree to sell or brought divest any material assets or business or agree to restrict in any material way any business conducted by a or proposed to be conducted by either of the Buyer Parties in connection with the Merger.
(b) The Company and Ciena each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, executive officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Information Statement or any other statement, filing, notice or application made by or on behalf of Ciena, the Company or any of their respective Subsidiaries to any third party before any Governmental Entity, in each case, with respect to the Merger and the other Transactions, (iii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or Proceeding, (iv) promptly inform the other parties of any material communication to or from and/or any Governmental Entity in connection with any such request, inquiry, investigation, action or Proceeding, (v) promptly furnish to the other party a copy of such communications, subject to a confidentiality agreement limiting disclosure to outside counsel and consultants retained by such counsel, and subject to redaction or withholding of documents as necessary to protect confidential and competitively sensitive information, (vi) use reasonable best efforts to consult in advance and cooperate with the other parties and consider in good faith the views of the other parties in connection with any substantive communication, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such request, inquiry, investigation, action or Proceeding, and (vii) except as may be prohibited by any Governmental Entity, permit authorized Representatives of the other parties to be present at each meeting and telephone or video conference to the extent relating to such request, inquiry, investigation, action or Proceeding. Each party (other than the Members’ Representative) shall supply as promptly as practicable and advisable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including any “second request” under the HSR Act, received by any party or any of their respective subsidiaries from any Governmental Entity in connection with such applications or filings for the Merger and the other Transactions. Subject to applicable Law relating to the exchange of information and transactions contemplated by this Section 5.04(d) and Section 5.04(e), Parent shall, in consultation with the Company, have the right (i) to determine strategy and direction of all matters with any Governmental Entity and (ii) to review in advance, and direct the revision of, any filing, application, notification or other document to be submitted by the Company to any Governmental Entity under any applicable Law. Parent shall pay all filing fees under the HSR Act and any filing fees under Foreign Antitrust LawsAgreement.
(ec) Parent The Company and Ciena each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated hereby.
(d) The Company shall submit to the Stockholders for approval (in a manner reasonably satisfactory to Ciena), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that Ciena and the Company shall use reasonable best efforts to consult reasonably determine may separately or in advance with each other the aggregate, constitute “parachute payments” (within the meaning of Section 280G of the Code and in good faith take each other’s views into account prior to taking any material substantive position in any written submissions orthe regulations promulgated thereunder), to the extent practicable, discussions with Governmental Entities with respect to the Merger such that such payments and this Agreement. Parent benefits shall not commit to or agree with any Governmental Entity to not consummate the Merger and the other Transactions for any period of time, or to stay, toll or extend, directly or indirectly, any applicable waiting period under the HSR Act or other applicable Foreign Antitrust Law, and shall not pull and refile any filing made under the HSR Act, in each case, without prior consultation with the Company and in good faith taking the Company’s views into account.
(f) During the Pre-Closing Period, Parent agrees that it shall not, and shall not permit any of its affiliates to, directly or indirectly, acquire or agree to acquire any assets or a 25% or greater ownership interest in a business or any Person, whether by merger, consolidation, purchasing a substantial portion of the assets of or equity in any Person or by any other manner or engage in any other transaction or take any other action, if the entering into of an agreement relating to or the consummation of such acquisition, merger, consolidation or purchase or other transaction or action would reasonably be expected to (i) impose any delay in the expiration or termination of any applicable waiting period or impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, clearance, approval or order of a Governmental Entity necessary to consummate the Merger and the Transactions, including any approvals and expiration of waiting periods pursuant to the HSR Act or any other applicable Foreign Antitrust Law, (ii) increase the risk of any Governmental Entity entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger and the Transactions or (iii) otherwise delay or impede the consummation of the Merger and the Transactions.
(g) Until the date that is three (3) business days prior to the Closing Date, the Company may deliver to Parent a revised Allocation Schedule to reflect any issuance of Company Common Shares upon the exercise of Company Options outstanding on the Agreement Date, upon which such revised Allocation Schedule shall be deemed to be “parachute payments” under Section 280G of the Allocation Schedule for all purposes hereunder; provided that in no event shall any change Code, and prior to the Allocation Schedule result in any increase in the total consideration payable by Parent under this Agreement or the Contingent Payment Agreement, and in respect of Company Options as provided in Section 1.08(c), collectively.
(h) During the Pre-Closing Period, whenever feasible and to the extent not prohibited by applicable Law, Effective Time the Company shall promptly furnish Parent with, or provide Parent reasonable access deliver to Ciena evidence reasonably satisfactory to Ciena that (iA) meeting minutes from any meetings or scheduled teleconferences a stockholder vote was solicited in conformance with Section 280G and the FDA or any similar Regulatory Authority regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any Company Licensed Product and (ii) written correspondence (excluding immaterial communications) with payments and/or benefits that were subject to the FDA or any similar Regulatory Authority with respect to any Company Licensed Product.
(i) On or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall distribute to each Company Optionholder a notice stockholder vote (the “Optionholder Notice280G Approval”), or (B) in substantially that the form attached hereto 280G Approval was not obtained and as Exhibit I to solicit their signature a consequence, that such “parachute payments” shall not be made or provided, pursuant to the Option Treatment Agreement. Further, on or promptly (and in any case within three (3) business days) after waivers of those payments and/or benefits which were executed by the Agreement Date, the Company shall deliver a Promised Equity Cancellation Agreement affected individuals prior to each Promised Equity Granteesuch Stockholder vote.
Appears in 1 contract
Sources: Merger Agreement (Ciena Corp)
Filings; Other Actions; Notification. (a) Subject to the terms The Company and conditions set forth in this Agreement, each of Parent shall (and the Company shall use cause their respective reasonable best efforts to take, Subsidiaries to) cooperate with each other and take or cause to be taken, taken all actions, to file, and do or cause to be fileddone all things, all documents 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 on its part under this Agreement and applicable Antitrust Laws to consummate and make effective the Merger and the other Transactions transactions contemplated by this Agreement as promptly soon as practicable, including using their best efforts to accomplish the following: (i) the satisfaction of the conditions set forth in Article VII, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, decisions, declarations, approvals and, expirations or terminations of waiting periods from Governmental Entities and the making of all necessary registrations Permits, Approvals and filings and the taking of all steps as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, any Governmental Entity in connection with any Antitrust Law, (ii) responding as promptly as practicable to any requests for information from any Governmental Entity, and contesting through litigation and resisting any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the Merger and the Transactions under any applicable Law Orders and (iii) the execution and delivery defending of any additional instruments necessary Actions challenging this Agreement or seeking to consummate prevent, delay or impair the Merger and consummation of the other Transactionstransactions contemplated hereby, including seeking to have any Order vacated or reversed.
(b) In furtherance Parent shall, upon request by the Company, furnish it with all information concerning itself, its Subsidiaries, directors, officers and not stockholders and such other matters as may be reasonably necessary or advisable in limitation connection with the Information Statement or any other registration, declaration, filing, notice or report made by or on behalf of the foregoing, if and to the extent necessary to consummate the Merger before the Outside Date, Parent shall offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (i) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Parent Company or any of its affiliatesrespective Subsidiaries to any third party, or (ii) including any Governmental Entity, in connection with the imposition of any limitation or regulation on Merger and the ability of Parent or any of its affiliates to freely conduct their business or own such assets (any of the actions described in the foregoing clauses (i) and (ii), a “Remedy Action”) except to the extent that such Remedy Actions would, or would reasonably be expected to, individually or in the aggregate, result in a Burdensome Condition; provided that any Remedy Action required to be taken shall be conditioned upon the consummation of the Transactions. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that Parent and its affiliates shall not have any obligation to litigate any suit challenging any of the Transactions as violative of any Antitrust Lawstransactions contemplated by this Agreement.
(c) Prior Subject to the Agreement Date, Parent applicable Law and the instructions of any Governmental Entity, the Company have made appropriate filings and Parent each shall keep the other apprised of their respective Notification and Report forms the status of matters relating to completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other communications received by Parent or the Company, as required by the HSR Act case may be, or any of its Subsidiaries, from any Governmental Entity with respect to the Merger and the other Transactions. Subject to the terms and conditions of this Agreement, each of Parent and the Company shall (and shall cause their respective affiliates, if applicable, to) as promptly as reasonably practicable, make or submit all appropriate filings, notifications, applications, or similar documents required under any Foreign Antitrust Law applicable to the Merger and the other Transactions (as set forth in Section 5.04(c) of the Company Disclosure Letter)such transactions.
(d) Without limitation of the foregoing, Parent and the Company undertake and agree to file as soon as practicable (and in any event within ten (10) Business Days after the date hereof), if required by law, a Notification and Report Form under the HSR Act with the Federal Trade Commission ("FTC") and the Antitrust Division of the Department of Justice ("DOJ"). If Parent or the Company reasonably determine that it is so required, Parent and Company shall, promptly after the date of this Agreement, prepare and file notifications required under any applicable Foreign Antitrust Laws or regulations thereunder in connection with the Merger.
(e) Without limitation of the above, Parent and the Company undertake and agree to file as soon as practicable (and in any event within fifteen (15) Business Days after the date hereof) with the Committee on Foreign Investment in the United States ("CFIUS") a joint voluntary notice under the Exon-▇▇▇▇▇▇ Amendment, with respect to the transaction contemplated by this Agreement. The parties agree to provide CFIUS with any additional or supplemental information requested by CFIUS or its member agencies during the Exon-▇▇▇▇▇▇ Amendment review process. The parties, in cooperation with each other, shall take all commercially reasonable steps advisable, necessary or desirable to finally and successfully complete the Exon-▇▇▇▇▇▇ Amendment review process as promptly as practicable.
(f) Without limitation of the above, Parent and the Company undertake and agree to file (i) as soon as practicable (and in any event within fifteen (15) Business Days after the date hereof) with the United States Department of State Directorate of Defense Trade Controls ("DDTC") the requisite notifications under ITAR and (ii) within five (5) Business Days after the date hereof with the Bureau of Alcohol, Tobacco, Firearms and Explosives (the "ATF") a notice in connection with the Company's application to renew its license to be a manufacturer of destructive devices and certain other materials, which expires on September 1, 2006, referencing this Agreement pursuant to which Parent will acquire the Company, and cooperate with any requests or directions of ATF regarding the filing of related or supplemental materials.
(g) Without limiting the generality of anything contained in the undertakings pursuant to this Section 5.046.4 (but subject to the limitations provided in clause (ii) below with respect to Specified Efforts), each party (other than of the Members’ Representative) shall, Company and Parent agrees to take or cause to be taken the extent permitted by Law, following actions: (i) use reasonable best efforts to cooperate in all respects and consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding brought request by a Governmental Entity or brought by a third party before any Governmental Entity, in each case, with respect to the Merger and the other Transactions, (iii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or Proceeding, (iv) promptly inform the other parties of any material communication to or from any Governmental Entity in connection with jurisdiction over enforcement of any such request, inquiry, investigation, action antitrust or Proceeding, (v) promptly furnish competition Laws applicable to the other party a copy of such communications, subject to a confidentiality agreement limiting disclosure to outside counsel Company or Parent ("Government Antitrust Entity") for additional non-privileged information and consultants retained documents requested by such counselGovernment Antitrust Entity or that are necessary, and subject proper or advisable to redaction or withholding of documents as necessary to protect confidential and competitively sensitive information, (vi) use reasonable best efforts to consult in advance and cooperate with the other parties and consider in good faith the views permit consummation of the other parties in connection with any substantive communication, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such request, inquiry, investigation, action or Proceeding, and (vii) except as may be prohibited transactions contemplated by any Governmental Entity, permit authorized Representatives of the other parties to be present at each meeting and telephone or video conference to the extent relating to such request, inquiry, investigation, action or Proceeding. Each party (other than the Members’ Representative) shall supply as promptly as practicable and advisable such information, documentation, other material or testimony that may be requested by any Governmental Entity, including any “second request” under the HSR Act, received by any party or any of their respective subsidiaries from any Governmental Entity in connection with such applications or filings for the Merger and the other Transactions. Subject to applicable Law relating to the exchange of information and this Section 5.04(d) and Section 5.04(e), Parent shall, in consultation with the Company, have the right (i) to determine strategy and direction of all matters with any Governmental Entity Agreement and (ii) to review in advance, and direct the revision of, any filing, application, notification or other document to be submitted by the Company to any Governmental Entity under any applicable Law. Parent shall pay all filing fees under the HSR Act and any filing fees under Foreign Antitrust Laws.
(e) Parent and the Company shall prompt use reasonable best efforts to consult in advance with each other and in good faith take each other’s views into account prior to taking any material substantive position in any written submissions or, to the extent practicable, discussions with Governmental Entities with respect to the Merger and this Agreement. Parent shall not commit to or agree with any Governmental Entity to not consummate the Merger and the other Transactions for any period of time, or to stay, toll or extend, directly or indirectly, any applicable waiting period under the HSR Act or other applicable Foreign Antitrust Law, and shall not pull and refile any filing made under the HSR Act, in each case, without prior consultation with the Company and in good faith taking the Company’s views into account.
(f) During the Pre-Closing Period, Parent agrees that it shall not, and shall not permit any of its affiliates to, directly or indirectly, acquire or agree Specified Efforts to acquire any assets or a 25% or greater ownership interest in a business or any Person, whether by merger, consolidation, purchasing a substantial portion of avoid the assets of or equity in any Person or by any other manner or engage in any other transaction or take any other action, if the entering into of an agreement relating to or the consummation of such acquisition, merger, consolidation or purchase or other transaction or action would reasonably be expected to (i) impose any delay in the expiration or termination entry of any applicable waiting period or impose any delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, clearance, approval or order of a Governmental Entity necessary to consummate the Merger and the Transactions, including any approvals and expiration of waiting periods pursuant to the HSR Act or any other applicable Foreign Antitrust Law, (ii) increase the risk of any Governmental Entity entering, or increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order decree, decision, determination or judgment Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger transactions contemplated by this Agreement. For purposes of this Section 6.4(g), "Specified Efforts" shall mean all efforts that an acquiring or selling entity (as the case may be) in an acquisition such as the one contemplated herein would make if using best efforts to avoid the entry of such an Order, including the devotion of all required management time and the Transactions or (iii) engagement and payment of its Representatives to assist in such efforts but otherwise delay or impede excluding the consummation payment of any sum material to Parent's acquisition of the Merger and Company to avoid the Transactionsentry of such Order.
(g) Until the date that is three (3) business days prior to the Closing Date, the Company may deliver to Parent a revised Allocation Schedule to reflect any issuance of Company Common Shares upon the exercise of Company Options outstanding on the Agreement Date, upon which such revised Allocation Schedule shall be deemed to be the Allocation Schedule for all purposes hereunder; provided that in no event shall any change to the Allocation Schedule result in any increase in the total consideration payable by Parent under this Agreement or the Contingent Payment Agreement, and in respect of Company Options as provided in Section 1.08(c), collectively.
(h) During the Pre-Closing Period, whenever feasible and to the extent not prohibited by applicable Law, the Company shall promptly furnish Parent with, or provide Parent reasonable access to (i) meeting minutes from any meetings or scheduled teleconferences with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product and (ii) written correspondence (excluding immaterial communications) with the FDA or any similar Regulatory Authority with respect to any Company Licensed Product.
(i) On or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall distribute to each Company Optionholder a notice (the “Optionholder Notice”) in substantially the form attached hereto as Exhibit I to solicit their signature to the Option Treatment Agreement. Further, on or promptly (and in any case within three (3) business days) after the Agreement Date, the Company shall deliver a Promised Equity Cancellation Agreement to each Promised Equity Grantee.
Appears in 1 contract
Sources: Merger Agreement (Meggitt USA Inc)