Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws to consummate the Merger and the other Contemplated Transactions as promptly as reasonably possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to, or to cause their ultimate parent entity (as such term is defined in the HSR Act) to, (i) make an appropriate Filing of a Notification and Report Form pursuant to the HSR Act and all other Filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of the Agreement) and (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other Antitrust Law. Parent shall, with the reasonable cooperation of the Company, be responsible for making any Filing or notification required under foreign Antitrust Laws within ten (10) Business Days after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. The parties hereto also shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and may provide to the other parties on a counsel-only basis as necessary, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any Antitrust Laws, (B) to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel basis, if appropriate. (b) Notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possible, provided, however, that nothing in this Section 5.7 or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates to (i) offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or (ii) contest, defend, or appeal any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof, if any such action described in subparts (i) or (ii) of this Section 5.7(b) would, individually or in the aggregate, reasonably be expected to have (A) a material adverse effect on the business, assets or financial condition of Parent and its Subsidiaries or Affiliates, taken as a whole, after giving effect to the Contemplated Transactions or (B) a material adverse effect on the business, assets or financial condition of the Company; it being understood that a request for information or documentary material pursuant to the HSR Act shall not in itself constitute a material adverse effect under this Section 5.7(b). Parent and the Company shall each pay one-half of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust Laws. (c) Without limiting the obligations in clauses (a) and (b) of this Section 5.7, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, and the Company shall cooperate in all respects with each other 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 decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger. (d) Prior to the Effective Time, each party hereto shall use reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactions, including (i) obtaining any Approvals of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions, (ii) defending any Action challenging this Agreement or the consummation of the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions; provided, that, in no event will the Company or its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any Approvals required with respect to any such Contract (for the avoidance of doubt, excluding filing fees required to be paid to a Governmental Body). Each party hereto shall promptly deliver to the other party a copy of each such filing made, each such notice given and each such consent obtained by such party prior to the Effective Time.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Regulatory Law to consummate the Merger Transactions, and no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, materially impede or materially delay the other Contemplated Transactions as promptly as reasonably possible andconsummation of the Transactions. In furtherance and not in limitation of the foregoing, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement each party hereto agrees to the contrary, the parties hereto agree to, or to cause their ultimate parent entity (as such term is defined in the HSR Act) to, make (i) make an appropriate Filing filing of a Notification and Report Form pursuant to the HSR Act and all other Filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing of a Notification and Report Form pursuant to the HSR Act must be made Transactions within ten (10) Business Days after from the date of hereof (unless a later date is mutually agreed between the Agreementparties) and (ii) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as reasonably practicable, including by requesting early termination of the waiting period provided for in the HSR Act, (ii) appropriate filings under any other Regulatory Law with respect to the Transactions as soon as reasonably practicable and (iii) any other necessary, proper or advisable registrations, filings and notices with respect to the Transactions. Subject to applicable Law, and except as required by any Governmental Entity, the Company shall not agree to extend any waiting period under the HSR Act or any other Antitrust Law. Parent shall, with Regulatory Law applicable to the reasonable cooperation Transactions without the prior written consent of the Company, be responsible for making any Filing or notification required under foreign Antitrust Laws within ten (10) Business Days after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writingParent. The parties hereto also shall consult filing fee for the Notification and cooperate with one another, Report Forms filed under the HSR Act and consider in good faith the views of one another, in connection with, and may provide to the any other parties on a counsel-only basis as necessary, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party hereto Regulatory Law filings in connection with proceedings under or relating the Transactions required pursuant to any Antitrust Laws. Without limiting this Section 5.6(a) shall be split fifty percent (50%) by Parent and fifty percent (50%) by the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any Antitrust Laws, (B) to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel basis, if appropriateCompany.
(b) Notwithstanding anything to the contrary contained in this Agreement to the contrary, Parent shall, and shall cause its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental BodyAgreement, in each case, to cause the Merger to occur as promptly as possible, provided, however, that nothing in this Section 5.7 no event shall Parent or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates be required to (and the Company and its Subsidiaries and Affiliates shall not, without Parent’s prior written consent) (i) offerpropose, negotiate, commit to, or and/or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, transfer, license, disposition, or other disposition hold separate (through the establishment of a trust or otherwise) of any and all of the capital stock, assets, equity holdings, rights, productsproperties, or businesses of Parent and or its Subsidiaries or Affiliates or of the assets, properties, or businesses to be acquired pursuant to this Agreement, (including ii) terminate, modify, or assign existing relationships, Contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) change or modify any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the Surviving Corporation and assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise take or commit to take any other action that would limit Parent’s or its Subsidiaries)’ or Affiliates’ freedom of action with respect to, or their ability to retain, one or more of their respective operations, divisions, businesses, product lines, customers, assets or rights or interests, or their freedom of action with respect to the assets, properties, or businesses to be acquired pursuant to this Agreement.
(c) In addition, if any action or proceeding is instituted (or threatened) challenging the Transactions as violating any Regulatory Law or if any decree, order, Judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be entered or enforced by any Governmental Entity that would make the Transactions illegal or otherwise delay or prohibit the consummation of the Transactions, the parties shall have no obligation to take any action to contest, defend or litigate any such claim, cause of action, proceeding, decree, order, Judgment or injunction.
(d) Each of Parent, Merger Sub I and Merger Sub II, on the one hand, and the Company, on the other hand, shall, in connection with obtaining requisite approvals and authorizations for the Transactions under the HSR Act or any other restrictions on Regulatory Law, use its commercially reasonable 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 Action initiated by a private party, (ii) promptly notify the activities other party of any substantive communication made or received by Parent or the Company, as the case may be, from any Governmental Entity and of any communication received or given in connection with any Action by a private party, in each case regarding any of the Transactions (iii) subject to applicable Law, permit the other party a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or private party, and (iv) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend or participate. Notwithstanding the foregoing, the Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other side under this Section 5.6(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by outside counsel to employees, officers, directors or consultants of the recipient or any of its Affiliates unless express permission is obtained in advance from the source of the materials (the Company or Parent, as the case may be) or its legal counsel. Each of the Company and Parent shall cause its respective counsel to comply with this Section 5.6(d).
(e) During the period from the date of this Agreement until the Effective Time, except as required by this Agreement and except as set forth in Section 5.6(e) of the Parent Disclosure Letter, Parent and its Subsidiaries (including Affiliates shall not, without the Surviving Corporation and prior written consent of the Company, engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into by Parent or any of its Subsidiaries) or (ii) contest, defend, or appeal any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order Affiliates that would adversely affect the ability of any party hereto reasonably be expected to consummate the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof, if any such action described in subparts (i) or (ii) of this Section 5.7(b) wouldhave, individually or in the aggregate, reasonably be expected to have (A) a material adverse effect on the business, assets or financial condition of Parent and its Subsidiaries or Affiliates, taken as a whole, after giving effect to the Contemplated Transactions or (B) a material adverse effect on the business, assets or financial condition of the Company; it being understood that a request for information or documentary material pursuant to the HSR Act shall not in itself constitute a material adverse effect under this Section 5.7(b). Parent and the Company shall each pay one-half of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust Laws.
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.7, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each ability of Parent, Merger SubSub I or Merger Sub II to consummate the transactions contemplated hereby prior to the Outside Date. Without limiting the generality of the foregoing, and the Company none of Parent or its Affiliates shall cooperate in all respects with each other and shall use its reasonable best efforts to contest and resist any such action acquire (whether by merger, consolidation, stock or proceeding and to have vacated, lifted, reversedasset purchase or otherwise), or overturned agree to so acquire, any decreeassets of or any equity in any other Person or any business or division thereof, judgment, injunction, decision, if that acquisition or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger.
(d) Prior to the Effective Time, each party hereto shall use reasonable best efforts (subject agreement would reasonably be expected to, and in accordance with, applicable Law) to take promptly, or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactions, including : (i) materially increase the risk of not obtaining approval under any Approvals Regulatory Law or the expiration or termination of third parties any waiting period in connection with respect to Antitrust Laws; (ii) materially increase the risk of any Contracts to which it is a party as may be necessary for Governmental Entity entering an order prohibiting the consummation of the Contemplated Transactions transactions contemplated by this Agreement, including the Mergers or required by materially increase the terms risk of not being able to remove any Contract as a result of the execution, performance, such order on appeal or consummation of the Contemplated Transactions, (ii) defending any Action challenging this Agreement otherwise; or the consummation of the Contemplated Transactions and (iii) executing and delivering prevent or materially delay beyond the Outside Date receipt of any additional instruments necessary to consummate the Contemplated Transactions; provided, that, in no event will the Company or its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any Approvals required with respect to any such Contract (for the avoidance of doubt, excluding filing fees required to be paid to a Governmental Body). Each party hereto shall promptly deliver to the other party a copy of each such filing made, each such notice given and each such consent obtained by such party prior to the Effective TimeAntitrust Law approval.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws to consummate the Offer, the Merger and the other Contemplated Transactions as promptly as reasonably possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to, or to that (i) they will each cause their ultimate parent entity (as such term is defined in the HSR Act) to, (i) to make an appropriate Filing filing of a Notification and Report Form pursuant to the HSR Act and all other Filings filings required pursuant to applicable foreign Antitrust Laws with respect to the Offer and Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of the this Agreement) and (ii) to the parties will supply as promptly as reasonably practicable any additional information and documentary material that may be requested by a Governmental Body pursuant to the HSR Act or any other Antitrust Law. Parent shall, with the reasonable cooperation of the Company, be responsible for making any Filing or notification required under foreign Antitrust Laws within ten (10) Business Days after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. The parties hereto also shall will consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and may provide to the other parties on a counsel-only basis as necessaryin advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, opinions and proposals made or submitted by or on behalf of such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any Antitrust Laws, (B) to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Body relating to any Antitrust Laws; provided, that in connection with sharing information pursuant to this Section 6.6(a), the parties may redact any commercially sensitive information or share such information on an “outside counsel” only basis and, unless explicitly excluded, in-house counsel of the recipient approved by the providing party and will not be disclosed by such outside counsel or approved in-house counsel to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel basis, if appropriate. Notwithstanding the foregoing, the Company and Parent shall jointly control the strategy and timing for obtaining any approvals or clearances required or advisable under any Antitrust Laws in connection with this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause each of its Subsidiaries Affiliates to, take any and all actions necessary use its reasonable best efforts to obtain any consents, clearances, clearances or approvals required under or in connection with the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign Law designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade or significant impediment of effective competition (collectively “Antitrust Laws Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possiblepossible and, providedin any event, howeverby or before the Outside Date, that nothing in this Section 5.7 or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates to including (i) offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of promptly complying with any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries requests for additional information (including the Surviving Corporation and its Subsidiaries)any second request) by any Governmental Body, and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or (ii) contestif necessary to obtain clearance by any Governmental Body before the Outside Date, defendcommitting to and effecting any required action or restriction and (iii) contesting, or appeal defending and appealing any threatened or pending preliminary or permanent injunction or other order, decree, decree or ruling or statute, rule, regulation, regulation or executive order that would adversely affect the ability of any party hereto to consummate the Offer and the Merger and taking other actions to prevent the entry, enactment, enactment or promulgation thereof. Notwithstanding anything in this Agreement to the contrary, if none of Parent or any of its Affiliates shall be required to agree to or proffer to sell, divest, lease, license, transfer, dispose of or otherwise encumber or impair Parent’s or any of its Affiliates’ ability to own or operate any assets or properties of Parent or any of its Affiliates (including for the avoidance of doubt, any equity or other interests in the Company) or any assets or properties of the Company or any of its Affiliates if, in each case, such action described in subparts (i) or (ii) of this Section 5.7(b) would, individually or in the aggregate, would reasonably be expected to have (A) a material adverse effect on the businessCompany, assets or financial condition of Parent and its Subsidiaries Subsidiaries. Furthermore, Parent shall not take, and shall cause each of its Affiliates to not take, any action or Affiliates, taken as a whole, after giving effect omit to take any action that reasonably would be expected to delay clearance by any Governmental Body or to make clearance by any Governmental Body before the Contemplated Transactions Outside Date less probable or (B) a material adverse effect on more difficult to obtain. Parent shall bear the business, assets expenses and costs incurred by the parties in connection with any filings or financial condition other such actions that may be required to obtain clearance under any Antitrust Law for the consummation of the Company; it being understood that a request for information or documentary material pursuant to the HSR Act shall not in itself constitute a material adverse effect under this Section 5.7(b). Parent Offer and the Company shall each pay one-half of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust LawsMerger.
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.76.6, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Offer or the Merger, each of Parent, Merger Sub, Purchaser and the Company shall will cooperate in all respects with each other and shall will use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, decision, decision or other order, whether temporary, preliminary, preliminary or permanent, that is in effect and that prohibits, prevents, prevents or restricts consummation of the Offer or the Merger.
(d) Prior to the Effective Acceptance Time, each party hereto shall will use commercially reasonable best efforts (subject toto obtain any consents, and in accordance with, applicable Law) to take promptly, approvals or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactions, including (i) obtaining any Approvals waivers of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, performance or consummation of the Contemplated Transactions, (ii) defending any Action challenging this Agreement or the consummation of the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions; provided, that, in no event will the Company or its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, penalty or other consideration or make any other accommodation to any third party to obtain any Approvals consent, approval or waiver required with respect to any such Contract (for the avoidance of doubt, excluding filing fees required to be paid to a Governmental Body). Each party hereto shall promptly deliver to the other party a copy of each such filing made, each such notice given and each such consent obtained by such party prior to the Effective TimeContract.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws to consummate the Offer, the Merger and the other Contemplated Transactions as promptly as reasonably possible practicable and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to, or to cause their ultimate parent entity (as such term is defined in the HSR Act) to, (i) make an appropriate Filing filing of a Notification and Report Form pursuant to the HSR Act and all other Filings filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, which agreement shall not be unreasonably withheld, conditioned or delayed, the Filing filing of a Notification and Report Form pursuant to the HSR Act must be made within ten twenty (1020) Business Days after from the date of the Agreementhereof) and (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other Antitrust Law. Parent shall, with the reasonable cooperation of the Company, be responsible for making any Filing or notification required under foreign Antitrust Laws within ten (10) Business Days after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. The parties hereto also shall consult and cooperate with one another, and consider in good faith the reasonable views of one another, in connection with, and may provide to the other parties on a counsel-only basis as necessaryin advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party hereto in connection with proceedings under or relating to any Antitrust Laws, provided that, subject to its undertakings in this Section 6.6, the final determination as to the appropriate course of action shall be made by Parent. Without limiting the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all substantive meetings with any Governmental Body relating to any Antitrust Laws, (B) to the extent reasonably practicable, to give each other an opportunity to participate in each of such meetings, (C) to the extent reasonably practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto (and its outside legal counsel) of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws and (F) to provide each other (and its outside legal counsel) with copies of all written communications to or from any Governmental Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel/in-house counsel basis, if appropriate. Each party may, as each deems advisable and necessary, reasonably designate any such disclosures or provision of copies by one party to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and the information contained therein shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) as necessary to comply with contractual obligations and (ii) as necessary to protect privileged attorney-client communications or attorney work product.
(b) Notwithstanding anything in this Agreement to the contrary, Parent Each party shall, and shall cause its each of their respective Subsidiaries to, take any and all actions necessary use its reasonable best efforts to obtain any consents, clearances, or approvals required under or in connection with the Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possiblepracticable and, providedin any event, howeverby or before the Outside Date, that nothing in this Section 5.7 or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates to including (i) offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of as promptly as reasonably practicable complying with any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries requests for additional information (including the Surviving Corporation any second request) by any Governmental Body and its Subsidiaries), and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or (ii) contest, defend, or appeal contesting and defending any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Offer and the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof. Furthermore, if each party shall not take, and shall cause each of their respective Subsidiaries to not take, any such action described in subparts (i) or (ii) of this Section 5.7(b) would, individually or in the aggregate, omit to take any action that would reasonably be expected to materially delay or prevent consummation of the Contemplated Transactions. Parent shall pay all filing fees incurred by the parties in connection with any filings which may be required by such party to obtain clearance under any Antitrust Law for the consummation of the Offer and the Merger (other than, for the avoidance of doubt, fees and expenses of counsel or other advisors to the Company). Notwithstanding anything to the contrary in this Section 6.6(b) or otherwise in this Agreement, neither Parent nor any of its Affiliates shall have any obligation to offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any or all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent or any of its Subsidiaries (A) a material adverse effect including the Surviving Corporation), or any other restrictions on the businessactivities of Parent or any of its Subsidiaries (including the Surviving Corporation). In addition, the Company shall not offer or commit to take any of such actions without Parent’s prior written consent, which includes taking or committing to take actions that limit Parent or any of its Subsidiaries (including the Surviving Corporation), as applicable, freedom of action with respect to, or their ability to retain, any of the businesses, employees, or assets or financial condition of the Company, and Parent and its Subsidiaries or Affiliates, taken as a whole, after giving effect to the Contemplated Transactions or (B) a material adverse effect on the business, assets or financial condition of the Company; it being understood that a request for information or documentary material pursuant to the HSR Act Affiliates shall not be required to commit to any provision (in itself constitute any consent decree or otherwise) requiring the prior approval of a material adverse effect under this Section 5.7(b)Governmental Body to engage, or agree not to engage in any present or future transaction involving Parent or any of its Affiliates. Parent shall not require the Company to, and the Company shall each pay one-half not be required to, take any action with respect to any consent decree, hold separate order or other applicable Law that binds the Company prior to the Effective Time. Neither Parent nor the Company shall enter any agreement with a Governmental Body not to consummate or to delay consummation of the filing fees for Contemplated Transactions without the Notification and Report Forms filed under prior written consent of the HSR Act and all other filings required pursuant party to the applicable foreign Antitrust extent permissible by Laws.
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.7, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, and the Company shall cooperate in all respects with each other 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 decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger.
(d) Prior to the Effective Acceptance Time, each party hereto shall use commercially reasonable best efforts (subject toto obtain any consents, and in accordance with, applicable Law) to take promptlyapprovals, or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactions, including (i) obtaining any Approvals waivers of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions, (ii) defending any Action challenging this Agreement or the consummation of the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions; provided, provided that, in no event will the Company or its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any Approvals consent, approval, or waiver required with respect to any such Contract (for the avoidance of doubt, excluding filing fees required to be paid to a Governmental Body). Each party hereto shall promptly deliver to the other party a copy of each such filing made, each such notice given and each such consent obtained by such party prior to the Effective TimeContract.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Regulatory Law to consummate the Merger Transactions, and no party hereto shall fail to take or cause to be taken any action that would reasonably be expected to prevent, materially impede or materially delay the other Contemplated Transactions as promptly as reasonably possible andconsummation of the Transactions. In furtherance and not in limitation of the foregoing, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement each party hereto agrees to the contrary, the parties hereto agree to, or to cause their ultimate parent entity (as such term is defined in the HSR Act) to, make (i) make an appropriate Filing filing of a Notification and Report Form pursuant to the HSR Act and all other Filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing of a Notification and Report Form pursuant to the HSR Act must be made Transactions within ten (10) Business Days after from the date of hereof (unless a later date is mutually agreed between the Agreementparties) and (ii) to supply as promptly as reasonably practicable and advisable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other commercially reasonable actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as reasonably practicable, including by requesting early termination of the waiting period provided for in the HSR Act, (ii) appropriate filings under any other Regulatory Law with respect to the Transactions as soon as reasonably practicable and (iii) any other necessary, proper or advisable registrations, filings and notices with respect to the Transactions. Subject to applicable Law, and except as required by any Governmental Entity, the Company shall not agree to extend any waiting period under the HSR Act or any other Antitrust Law. Parent shall, with Regulatory Law applicable to the reasonable cooperation Transactions without the prior written consent of the Company, be responsible for making any Filing or notification required under foreign Antitrust Laws within ten (10) Business Days after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writingParent. The parties hereto also shall consult filing fee for the Notification and cooperate with one another, Report Forms filed under the HSR Act and consider in good faith the views of one another, in connection with, and may provide to the any other parties on a counsel-only basis as necessary, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party hereto Regulatory Law filings in connection with proceedings under or relating the Transactions required pursuant to any Antitrust Laws. Without limiting this Section 5.6(a) shall be split fifty percent (50%) by Parent and fifty percent (50%) by the foregoing, the parties hereto agree (A) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any Antitrust Laws, (B) to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto of the substance of such communication, (E) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws and (F) to provide each other with copies of all written communications to or from any Governmental Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel basis, if appropriateCompany.
(b) Notwithstanding anything to the contrary contained in this Agreement to the contrary, Parent shall, and shall cause its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental BodyAgreement, in each case, to cause the Merger to occur as promptly as possible, provided, however, that nothing in this Section 5.7 no event shall Parent or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates be required to (and the Company and its Subsidiaries and Affiliates shall not, without Parent’s prior written consent) (i) offerpropose, negotiate, commit to, or and/or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, transfer, license, disposition, or other disposition hold separate (through the establishment of a trust or otherwise) of any and all of the capital stock, assets, equity holdings, rights, productsproperties, or businesses of Parent and or its Subsidiaries (including or Affiliates or of the Surviving Corporation and its Subsidiaries)assets, and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) properties, or businesses to be acquired pursuant to this Agreement, (ii) contestterminate, defendmodify, or appeal any threatened or pending preliminary or permanent injunction or other orderassign existing relationships, decreeContracts, or ruling obligations of Parent or statuteits Subsidiaries or Affiliates or those relating to any assets, rule, regulationproperties, or executive order businesses to be acquired pursuant to this Agreement, (iii) change or modify any course of conduct regarding future operations of Parent or its Subsidiaries or Affiliates or the assets, properties, or businesses to be acquired pursuant to this Agreement, or (iv) otherwise take or commit to take any other action that would adversely affect the ability limit Parent’s or its Subsidiaries’ or Affiliates’ freedom of any party hereto to consummate the Merger and taking other actions to prevent the entry, enactmentaction with respect to, or promulgation thereoftheir ability to retain, if any such action described in subparts (i) one or (ii) more of this Section 5.7(b) wouldtheir respective operations, individually or in the aggregatedivisions, reasonably be expected to have (A) a material adverse effect on the businessbusinesses, product lines, customers, assets or financial condition rights or interests, or their freedom of Parent and its Subsidiaries or Affiliates, taken as a whole, after giving effect action with respect to the Contemplated Transactions assets, properties, or (B) a material adverse effect on the business, assets or financial condition of the Company; it being understood that a request for information or documentary material businesses to be acquired pursuant to the HSR Act shall not in itself constitute a material adverse effect under this Section 5.7(b). Parent and the Company shall each pay one-half of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust LawsAgreement.
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.7In addition, in the event that if any administrative or judicial action or proceeding is instituted (or threatened threatened) challenging the Transactions as violating any Regulatory Law or if any decree, order, Judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be institutedentered or enforced by any Governmental Entity that would make the Transactions illegal or otherwise delay or prohibit the consummation of the Transactions, the parties shall have no obligation to take any action to contest, defend or litigate any such claim, cause of action, proceeding, decree, order, Judgment or injunction.
(d) by a Governmental Body challenging the Merger, each Each of Parent, Merger SubSub I and Merger Sub II, on the one hand, and the Company shall Company, on the other hand, shall, in connection with obtaining requisite approvals and authorizations for the Transactions under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and shall use its reasonable best efforts to contest and resist in connection with any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, investigation or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger.
(d) Prior to the Effective Time, each party hereto shall use reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactionsinquiry, including (i) obtaining any Approvals of third parties with respect to any Contracts to which it is Action initiated by a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactionsprivate party, (ii) defending promptly notify the other party of any substantive communication made or received by Parent or the Company, as the case may be, from any Governmental Entity and of any communication received or given in connection with any Action challenging by a private party, in each case regarding any of the Transactions (iii) subject to applicable Law, permit the other party a reasonable opportunity to review any substantive written communication given by it to, and consult with each other in advance of any scheduled substantive meeting or conference with, the FTC, the DOJ or any other Governmental Entity or private party, and (iv) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the consummation of Transactions unless, to the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary extent reasonably practicable, it consults with the other party in advance and, to consummate the Contemplated Transactions; providedextent permitted by such Governmental Entity, thatgives the other party the opportunity to attend or participate. Notwithstanding the foregoing, in no event will the Company or its Subsidiaries be required to payand Parent may, prior to the Effective Timeas each deems advisable and necessary, reasonably designate any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any Approvals required with respect to any such Contract (for the avoidance of doubt, excluding filing fees required to be paid to a Governmental Body). Each party hereto shall promptly deliver competitively sensitive material provided to the other party a copy of each such filing made, each such notice given and each such consent obtained by such party prior to the Effective Time.side
Appears in 1 contract
Sources: Merger Agreement (ExOne Co)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws to consummate the Merger and the other Contemplated Transactions and the Parent Share Issuance and the issuance of the New Parent Equity Awards as promptly soon as reasonably possible and, in any event, by or before the Outside Datepracticable. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to, or to cause their ultimate parent entity (as such term is defined in the HSR Act) to, (i) make an appropriate Filing filing of a Notification and Report Form pursuant to the HSR Act and all other Filings required pursuant to applicable foreign Antitrust Laws with respect to the Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline within fifteen (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (1015) Business Days after the date of the Agreement) and , (ii) make, or cause to be made, the filings, forms, submissions, applications, licenses or notices required or advisable (A) under any applicable licensing Laws, (B) in connection with any review or investigation pursuant to any applicable foreign direct investment Laws of the United States and non-U.S. jurisdictions, (C) under the ASX Listing Rules and the Corporations Act, or (D) to obtain the Australian Waivers, in each case as promptly as practicable after the date of this Agreement and (iii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested by a Governmental Body pursuant to the HSR Act or any other Antitrust applicable Law. Parent shall, with the reasonable cooperation of the Company, be responsible for making any Filing filing or notification required or advisable under foreign Antitrust Laws within ten (10final or in draft as the case may be) Business Days as promptly as possible after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. The parties hereto shall also shall consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and may subject to appropriate mechanisms to deal with the exchange of competitively sensitive information, provide to the other parties on a counsel-only basis as necessaryhereto in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party hereto in connection with proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, to the extent permitted by applicable Law, the parties hereto agree (A1) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any Antitrust Lawsthe Contemplated Transactions, (B2) to give each other an opportunity to participate in each of such meetings, unless prohibited by such Governmental Body, (C3) to the extent reasonably practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Lawsthe Contemplated Transactions, (D4) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Lawsthe Contemplated Transactions, to promptly notify the other party hereto of the substance of such communication, (E5) to provide each other with a reasonable advance opportunity to review and comment upon (and to consider in good faith any reasonable comments made by the other party upon) all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Body regarding any Antitrust Laws the Contemplated Transactions and (F6) to provide each other with copies of all written communications to or from any Governmental Body relating to any Antitrust Lawsthe Contemplated Transactions. Any such disclosures or provision of copies by one party hereto to the other may be made made, subject to restrictions to address confidential and/or competitively sensitive information, and on an outside counsel basis, if appropriate. Notwithstanding anything to the contrary contained in this Agreement, Parent shall have the right to control the strategy for obtaining all approvals and clearances sought by any filings applicable to the HSR Act and shall have the right to take the lead in coordinating the timing and content of all productions to, and all such filings, meetings and communications with, any Governmental Body in connection with obtaining any such approvals and clearances; provided Parent shall consider in good faith the views of the Company with respect to such strategy, coordination, content, analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted in connection with obtaining any such approvals and clearances.
(b) Notwithstanding anything in this Agreement to Without limiting the contrarygenerality of Section 5.09(a), Parent shall, and shall cause each of its Subsidiaries and Affiliates to, use reasonable best efforts to take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with the HSR Act and any other federal or state law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of lessening competition (collectively “Antitrust Laws Laws”) to enable all waiting periods under applicable Antitrust Laws to expire, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possibleprior to the Termination Date, provided, however, that nothing in this Section 5.7 or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates to including (i) offerpromptly complying with any requests for additional information (including any second request) by any Governmental Body, negotiate(ii) if necessary to obtain clearance by any Governmental Body before the Termination Date, commit offering, negotiating, committing to, or effectand effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) (each, a “Remedy”); provided that, notwithstanding anything to the contrary set forth in this Agreement, neither Parent nor any of its Subsidiaries shall be required to undertake or (ii) contest, defend, or appeal agree to undertake any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof, if any such action described in subparts (i) or (ii) of this Section 5.7(b) would, individually or in the aggregate, reasonably be expected to have (A) a material adverse effect on the business, assets or financial condition of Parent and its Subsidiaries or Affiliates, taken as a whole, after giving effect to the Contemplated Transactions Burdensome Condition or (B) a material adverse effect on the business, assets or financial condition any other action with respect to any Remedy if such Remedy is not conditioned upon effectiveness of the CompanyContemplated Transactions; it being understood provided, further, that, upon Parent’s request, the Company shall take any of the actions referred to above (or agree to take such actions) if such actions are only effective from and after the Effective Time; provided, further that a request for information or documentary material pursuant to the HSR Act Company shall not in itself constitute a material adverse effect under this Section 5.7(btake any actions referred to above (or agree to take such actions). , without the written consent of Parent.
(c) Parent and the Company shall not take, and shall cause each pay one-half of its Subsidiaries to not take, any action or omit to take any action that would reasonably be expected to materially delay clearance by any Governmental Body under any Antitrust Laws or to make clearance by any Governmental Body under Antitrust Laws before the Termination Date materially less probable. Each of Parent and the Company shall bear any fees payable to any Governmental Body in connection with any filings that are made by such party to obtain clearance under any Antitrust Law for the consummation of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust LawsMerger.
(cd) Without limiting the obligations in clauses (a) and (b) of this Section 5.75.09, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, Parent and the Company shall cooperate in all respects with each other 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 decree, judgment, injunction, decision, or other orderGovernmental Order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger.
(de) Prior to the Effective Time, except as contemplated by Section 5.09(f), each party hereto shall use commercially reasonable best efforts (subject toto obtain any consents, and in accordance with, applicable Law) to take promptlyapprovals, or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactions, including (i) obtaining any Approvals waivers of third parties with respect to any Contracts to which it or any of its respective Subsidiaries is a party (including making any payments that would be required in connection with a transfer of a “Substantial Ownership Interest” as defined in the Angel Loan Fund Agreement) as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions, (ii) defending any Action challenging this Agreement or the consummation of the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions; provided, that, in no event will the Company Company, Parent or its applicable Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other financial accommodation to any third party to obtain any Approvals consent, approval, or waiver required with respect to any such Contract Contract.
(for f) The Company shall, and shall use its commercially reasonable efforts to cause its Representatives to, upon the avoidance reasonable request of doubtParent, excluding filing fees provide reasonable cooperation to Parent in connection with (i) an amendment or waiver, in a form reasonably satisfactory to the Company, to the Existing Credit Agreement to waive the “Change in Control” and any other “Event of Default” (each as defined in the Existing Credit Agreement, as applicable) that will occur upon the consummation of the Merger in order to permit the consummation of the Merger (the “Credit Agreement Amendment”) or (ii) the entry into a new credit agreement (the “New Credit Agreement”), to be effective no earlier than the Effective Time, by Parent or the Surviving Corporation or any of their Subsidiaries (including requesting, and using commercially reasonable efforts to cause, the Company’s Representatives to furnish any customary certificates in connection with the Credit Agreement Amendment or New Credit Agreement); provided, that (A) the Company shall not be required to be paid to a Governmental Body). Each party hereto shall promptly deliver to the other party a copy of each such filing madepay, each such notice given and each such consent obtained by such party prior to the Effective Time, any fee, penalty or other consideration or make any other financial accommodation to any third party, or pay Parent’s commitment or other similar fee in connection with the Credit Agreement Amendment or the New Credit Agreement, (B) the effectiveness of any documentation executed by the Company, with respect to the Credit Agreement Amendment or the New Credit Agreement, the attachment of any Lien to any assets of the Company or any of its Subsidiaries, or any payoff of existing indebtedness shall be subject to the consummation of the Merger, and (C) no director or officer of the Company shall be required to execute any agreement, certificate, document or instrument with respect to the Credit Agreement Amendment or New Credit Agreement that would be effective prior to the Closing (other than certifications of the financial statements). Parent and ▇▇▇▇▇▇ Sub each acknowledge and agree that it is not a condition to Parent’s or Merger Sub’s obligations to consummate the Merger or to any of their other obligations under this Agreement that the Credit Agreement Amendment or the New Credit Agreement be executed.
(g) Subject to the conditions and upon the terms of this Agreement, each of Parent and the Company shall use commercially reasonable efforts to obtain each approval, consent, ratification, permission and waiver of authorization required to be obtained by Parent or the Company from a Governmental Body in relation to the consummation of the Contemplated Transactions.
Appears in 1 contract
Sources: Merger Agreement (Sezzle Inc.)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, prior to the Effective Time, each party hereto shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws to consummate the Offer, the Merger and the other Contemplated Transactions as promptly as reasonably possible and, in any event, by or before the Outside Date. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to, or to cause their ultimate parent entity (as such term is defined in the HSR Act) to, (i) make an appropriate Filing filing of a Notification and Report Form pursuant to the HSR Act and all other Filings filings required pursuant to applicable foreign Antitrust Laws listed in Annex IV with respect to the Offer and Merger as promptly as reasonably practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the Filing filing of a Notification and Report Form pursuant to the HSR Act must be made within ten (10) Business Days after the date of the Agreement) and (ii) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other Antitrust Law. Parent shall, with the reasonable cooperation of the Company, be responsible for making any Filing filing or notification required or advisable under foreign Antitrust Laws listed in Annex IV, within ten (10) Business Days after the date of this Agreement, unless otherwise agreed to by the Company and Parent in writing. Parent shall, after reasonable consultation with the Company, have the right to devise, control and direct the strategy and timing for, and make all decisions relating to (and shall take the lead in all meetings and communications with any Governmental Body relating to), any required submissions, responses to information requests and filings to any Governmental Body or other Person and obtaining any consent or approval of any Governmental Body or other Person contemplated by this Section 6.6. The parties hereto also shall consult and cooperate in all respects with one another, and consider in good faith the views of one another, another in connection with, with the form and may provide to the other parties on a counsel-only basis as necessary, content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, opinions and proposals made or submitted by or on behalf of such party any party, hereto in connection with proceedings under or relating to any Antitrust LawsLaw prior to their submissions. Without limiting Each party shall obtain the foregoing, the parties hereto agree (A) to give each other reasonable advance notice consent of all meetings with any Governmental Body relating to any Antitrust Laws, (B) to give each other an opportunity to participate in each of such meetings, (C) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any Antitrust Laws, (D) if any Governmental Body initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other party hereto of the substance of such communication, (E) prior to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) entering into an agreement with a Governmental Body regarding not to consummate the Offer or Merger prior to a certain date that is beyond any Antitrust Laws then-applicable waiting period; provided, that such consent shall not be unreasonably withheld, conditioned or delayed. Each of the Company and (F) to provide each other with copies of all written communications to or from any Governmental Body relating to any Antitrust Laws. Any such disclosures or provision of copies by one party hereto to the other may be made on an outside counsel basis, if appropriate.
(b) Notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause its Subsidiaries to, take any and all actions necessary to obtain any consents, clearances, or approvals required under or in connection with Antitrust Laws to enable all waiting periods under applicable Antitrust Laws to expirethe Offer, and to avoid or eliminate impediments under applicable Antitrust Laws asserted by any Governmental Body, in each case, to cause the Merger to occur as promptly as possible, provided, however, that nothing in this Section 5.7 or elsewhere in this Agreement shall be deemed to require Parent, its Subsidiaries or Affiliates to (i) offer, negotiate, commit to, or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture, license, or other disposition of any and all of the capital stock, assets, equity holdings, rights, products, or businesses of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and any other restrictions on the activities of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or (ii) contest, defend, or appeal any threatened or pending preliminary or permanent injunction or other order, decree, or ruling or statute, rule, regulation, or executive order that would adversely affect the ability of any party hereto to consummate the Merger and taking other actions to prevent the entry, enactment, or promulgation thereof, if any such action described in subparts (i) or (ii) of this Section 5.7(b) would, individually or in the aggregate, reasonably be expected to have (A) a material adverse effect on the business, assets or financial condition of Parent and its Subsidiaries or Affiliates, taken as a whole, after giving effect to the Contemplated Transactions or (B) a material adverse effect on the business, assets or financial condition of the Company; it being understood that a request for information or documentary material pursuant to the HSR Act shall not in itself constitute a material adverse effect under this Section 5.7(b). Parent and the Company shall each pay one-half of the filing fees for the Notification and Report Forms filed under the HSR Act and all other filings required pursuant to the applicable foreign Antitrust Laws.
(c) Without limiting the obligations in clauses (a) and (b) of this Section 5.7, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, and the Company shall cooperate in all respects with each other 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 decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger.
(d) Prior to the Effective Time, each party hereto shall use reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken, all actions necessary, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the Contemplated Transactions, including with respect to actions taken on or after the date of this Agreement, without limitation: (1) promptly notify the other of, and if in writing, furnish the other with copies of (or, in the case of oral communications, advise the other of) any communications from or with any Governmental Body with respect to the Offer, the Merger or the Contemplated Transactions, (2) to the extent practicable, permit the other to review and discuss in advance, and consider in good faith the view of the other in connection with, any proposed written or oral communications with any Governmental Body with respect to the Offer, the Merger or the Contemplated Transactions, (3) to the extent practicable and to the extent permitted by the relevant Governmental Body, give the other party the opportunity to participate in any substantive meeting with any Governmental Body with respect to the Offer, the Merger or the Contemplated Transactions regarding any Antitrust Laws, (4) furnish the other party’s outside legal counsel with copies of all filings and communications between it and any such Governmental Body with respect to the Merger and the Contemplated Transactions; provided, however, that such material may be redacted as necessary (i) obtaining to comply with contractual arrangements, (ii) to address good faith legal privilege or confidentiality concerns and (iii) to comply with applicable Law, before being provided to Parent or Company (or any Approvals of their Affiliates), respectively, and (5) furnish the other party’s outside legal counsel with such 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 any such Governmental Body.
(b) Prior to the Acceptance Time, each party shall use commercially reasonable efforts to obtain any consents, approvals, or waivers of third parties with respect to any Contracts to which it is a party as may be necessary for the consummation of the Contemplated Transactions or required by the terms of any Contract as a result of the execution, performance, or consummation of the Contemplated Transactions, (ii) defending any Action challenging this Agreement or the consummation of the Contemplated Transactions and (iii) executing and delivering any additional instruments necessary to consummate the Contemplated Transactions; provided, that, in no event will the Company or its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty, or other consideration or make any other accommodation to any third party to obtain any Approvals consent, approval, or waiver required with respect to any such Contract Contract.
(for the avoidance of doubt, excluding filing fees required to be paid to a Governmental Body). Each party hereto shall promptly deliver c) Notwithstanding anything to the other party a copy contrary in this Agreement, nothing shall require or be construed to require Parent or any of each such filing madeits Affiliates or Subsidiaries to (i) sell, each such notice given and each such consent obtained by such party prior license or hold separate, or agree to sell or hold separate, before or after the Effective Time, any assets, businesses or any interests or rights in any assets or businesses, of Parent or any of its Affiliates or of the Company (or any of its Subsidiaries) or the Surviving Corporation (or to consent to any sale, or Contract to sell, by Parent, the Company, the Surviving Corporation or any of their respective Affiliates of any assets or businesses, or any interests or rights in any assets or businesses), or any change in or restriction on the operation by Parent or any of its Affiliates of any assets or businesses (including any assets or businesses of the Surviving Corporation), (ii) enter into any Contract or be bound by any obligation that Parent may deem in its sole discretion to have an adverse effect on the benefits to Parent of the Merger, (iii) modify any of the terms of this Agreement or the Merger or the other transactions contemplated by this Agreement, or (iv) initiate or participate in any Action with respect to any such matters (any action in clauses (i) through (iv), a “Non-Required Remedy”).
Appears in 1 contract