Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties 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 transactions contemplated by this Agreement as soon as practicable, including preparing and filing as promptly as practicable, all documentation to effect all necessary notices, reports and other filings and obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers, permits, clearances and Orders necessary or advisable to be obtained from any third party or any Governmental Authority in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing. (b) Without limiting the generality of the foregoing, as soon as practicable after the date of this Agreement, Parent shall (i) use reasonable best efforts to cause the relevant investors to make the filings with the NDRC, the Ministry of Commerce of China and SAFE or their respective local commissions and/or branches pursuant to the Administrative Measures on Enterprise Outbound Investment (企业境外投资管理办法) of the PRC, as amended, and the rules and regulations thereunder, with respect to such investors’ investments in relation to the transactions contemplated by this Agreement and related outbound indirect investments as set out in further detail in Schedule 7.1(c) of this Agreement, and promptly confirm to the Company in writing when such filings have been made, and (ii) initiate a pre-filing consultation with the NDRC as to whether the Merger is subject to the review of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRC. (c) If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. In furtherance of and not in limitation of the foregoing, the Company and Parent shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Effective Time to occur prior to the End Date. Without limiting the foregoing, the Company and Parent shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company or Parent or any Affiliate of the Company or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of the Company or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in this Agreement, the parties hereto understand and agree that in no event shall the Company be required to (and the Company shall not be in breach of this Agreement for failure to) take any action in respect of, or agree or commit to, (x) any sale, divestiture, disposition of any asset or business of the Company or its Subsidiaries or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, in each case of (x) and (y), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective Time. (d) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties to, in the case of Company, shall cause the Subsidiaries of the Company to) (i) cooperate with each other in connection with any filing or submission with any Governmental Authority and in connection with any investigation or other inquiry by any Governmental Authority, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated hereby, including employing such resources as are necessary to obtain the Required Regulatory Approvals; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable for any application or other filing to be made by the other Party to any Governmental Authority pursuant to any applicable Law in connection with the transactions contemplated by this Agreement, including application or filing to obtain the Required Regulatory Approvals; (iii) promptly notify the other Party of any substantive (whether verbal or written) communication received by such Party from, or given by such Party to, any Governmental Authority regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the other Party promptly with copies of all written correspondence and communications between them and any Governmental Authority with respect to the transactions contemplated hereby, including communications and correspondences in relation to obtaining the Required Regulatory Approvals; (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested by, any Governmental Authority in connection with the transactions contemplated hereby, including inquiries, information or documentation in relation to obtaining the Required Regulatory Approvals; and (v) permit the other Party to review, and to the extent practicable consult with the other Party in advance and consider in good faith the other Party’s reasonable comments in connection with, any material communication with any Governmental Authority in connection with the transactions contemplated hereby, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be entitled to redact materials (1) as necessary to comply with contractual arrangements, (2) as necessary to address reasonable legal privilege or confidentiality concerns, determined based on the advice of such Party’s outside legal counsel, or (3) to the extent relating to the Company’s valuation and similar matters relating to the Merger. (e) No Party shall independently participate in any substantive meeting or communication with any Governmental Authority in respect of any filing, investigation or other inquiry relating to the transactions contemplated hereby without giving the other Parties sufficient prior notice of such meeting or communication and, to the extent permitted by such Governmental Authority, giving the other Parties the opportunity to attend or participate in such meeting or communication.
Appears in 1 contract
Sources: Merger Agreement (Hollysys Automation Technologies, Ltd.)
Further Action; Efforts. (a) Subject to Each of the terms and conditions of this Agreement, each Party Parties shall (i) use its reasonable best efforts to promptly make all filings and promptly obtain all authorizations, consents, orders, clearances and approvals of all Governmental Bodies and officials that may be or become necessary or advisable for its execution and delivery of, and the performance of its obligations pursuant to, this Agreement, (and, in the case of Parent, cause each of ii) cooperate fully with the other Buyer Group Parties toParty in promptly seeking to obtain all such authorizations, consents, orders, clearances and approvals and (iii) 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 transactions contemplated by this Agreement as soon as practicable, including preparing and filing as promptly as practicable, all documentation to effect all necessary notices, reports and other filings and obtaining provide as promptly as practicable all consents, approvals, registrations, authorizations, waivers, permits, clearances and Orders necessary or advisable such information to be obtained from any third party or any Governmental Authority Body as such Governmental Body may request in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing.
(b) Without limiting the generality connection herewith. In furtherance of the foregoing, each Party hereto, as soon as practicable applicable, agrees to file promptly (but in no event later than twenty (20) Business Days after the date of this Agreement, Parent shall (i) use reasonable best efforts to cause the relevant investors to make the filings with the NDRC, the Ministry of Commerce of China and SAFE or their respective local commissions and/or branches pursuant to the Administrative Measures on Enterprise Outbound Investment (企业境外投资管理办法) of the PRC, as amended, notifications required under any Antitrust and the rules and regulations thereunder, with respect to such investors’ investments in relation FDI Laws applicable to the transactions contemplated by this Agreement and related outbound indirect investments to supply as set out in further detail in Schedule 7.1(cpromptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to such Antitrust and FDI Laws. None of Company, on the one hand, or Parent, on the other hand, may, without the consent of the other (such consent not to unreasonably withheld, conditioned or delayed), (x) cause any such filing or submission applicable to it to be withdrawn or refiled for any reason, including to provide the applicable Governmental Body with additional time to review any of the transactions contemplated by this Agreement or (y) consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement, . Parent shall pay all filing fees required to be paid to a Governmental Body in connection with the filings and promptly confirm notification required under Antitrust and FDI Laws applicable to the Company in writing when such filings have been made, and (ii) initiate a pre-filing consultation with the NDRC as to whether the Merger is subject to the review of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRCtransactions contemplated by this Agreement.
(cb) If, at any time after Notwithstanding the Effective Time, any further action is necessary or desirable to carry out the purposes foregoing provisions of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. In furtherance of and not Section 6.6 or anything in limitation of the foregoing, the Company and Parent shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority with respect this Agreement to the Merger so as contrary, (i) neither Parent nor any of its Affiliates is required to enable the Effective Time to occur prior to the End Date. Without limiting the foregoing, the Company and Parent shall (A) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and or effect), by consent decree, hold separate order, or otherwise, the sale, license, divestiture or disposition of such any assets of Parent or its Affiliates or the Company, (B) enter into any behavioral limitations, conduct restrictions or other commitments with respect to any assets or businesses business of the Company or Parent or any Affiliate of its Affiliates or the Company or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries (C) defend through litigation or otherwise offer to take formally oppose any claim or offer to commit to take determination (whether judicial or administrative in nature) by any action which it is capable of taking and if the offer is acceptedGovernmental Body or third party that would restrain, take or commit to take such action that limits its freedom of action with respect toprevent, or its ability to retain, any delay the consummation of the businesses, services or assets of the Company or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in transactions contemplated by this Agreement, the parties hereto understand Agreement and agree that in no event shall the Company be required to (and ii) the Company shall not be in breach of this Agreement for failure to) take or propose to undertake any action in respect ofdivestiture, or agree or commit to, (x) any sale, divestituredisposition, disposition of any asset license, hold separate or business of the Company other structural or its Subsidiaries conduct relief without Parent’s prior written consent (which may be given or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, withheld in each case of (x) and (yParent’s sole discretion), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective Time.
(dc) Each of Parent and Merger SubParent, on the one hand, and the Company, on the other hand, shall use promptly notify the other of any communication it or any of its reasonable best efforts Affiliates receives from any Governmental Body relating to (the matters that are the subject of this Agreement and, to the extent practicable, permit the other to review in the case of advance any proposed communication by such Party to any Governmental Body (including any filings required under any Antitrust and FDI Laws). Parent, cause each on the one hand, and the Company, on the other hand, shall, to the extent practicable, consult with the other in advance of, and, to the extent permitted by the applicable Governmental Body, give the other an opportunity to participate in, any meeting with any Governmental Body in respect of any filings, investigation (including any settlement of the investigation), litigation or other Buyer Group Parties toinquiry. Parent, in on the case of one hand, and the Company, shall cause on the Subsidiaries of the Company to) (i) other hand, will coordinate and cooperate fully with each other in connection with any filing or submission with any Governmental Authority exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking early termination of any investigation applicable waiting periods, including under any applicable Antitrust and FDI Laws. Parent, on the one hand, and the Company, on the other hand, will provide each other with copies of all correspondence, filings or other inquiry by communications between them or any of their Representatives, on the one hand, and any Governmental AuthorityBody or members of its staff, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated hereby, including employing such resources as are necessary to obtain the Required Regulatory Approvals; (ii) subject to applicable Law, furnish to on the other Party as promptly as reasonably practicable all information concerning itselfhand, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable for any application or other filing with respect to be made by the other Party to any Governmental Authority pursuant to any applicable Law in connection with this Agreement and/or the transactions contemplated by this Agreement; provided, including application or filing however, that such materials may be redacted, to obtain the Required Regulatory Approvals; (iii) promptly notify the other Party of extent permitted by any substantive (whether verbal or written) communication received by such Party from, or given by such Party to, any Governmental Authority regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish (i) to remove references concerning the other Party promptly with copies valuation of all written correspondence and communications between them and any Governmental Authority with respect to the business of the Company or the value of the Company after the consummation of the transactions contemplated hereby, including communications and correspondences in relation to obtaining the Required Regulatory Approvals; (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested by, any Governmental Authority in connection with the transactions contemplated hereby, including inquiries, information or documentation in relation to obtaining the Required Regulatory Approvals; and (v) permit the other Party to review, and to the extent practicable consult with the other Party in advance and consider in good faith the other Party’s reasonable comments in connection with, any material communication with any Governmental Authority in connection with the transactions contemplated hereby, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be entitled to redact materials (1ii) as necessary to comply with contractual arrangements, arrangements in effect as of the execution of this Agreement and (2iii) as necessary to address reasonable legal attorney-client or other privilege or confidentiality concernswork product protection, determined based on the advice of such Party’s outside legal counsel, or (3) to the extent relating that that such attorney-client or other privilege or work product protection are not governed by a common interest privilege or doctrine. Notwithstanding the foregoing, in the event Parent and the Company disagree, Parent shall retain control over the strategy to the Company’s valuation and similar matters relating to the Merger.
(e) No Party shall independently participate gain regulatory clearance or approval before any Governmental Bodies or in any substantive meeting or communication with any Governmental Authority in respect of any filing, investigation or other inquiry relating Action brought to enjoin the transactions contemplated hereby without giving the other Parties sufficient prior notice of such meeting or communication and, pursuant to the extent permitted by such Governmental Authority, giving the other Parties the opportunity to attend or participate in such meeting or communicationany FDI and Antitrust Law.
Appears in 1 contract
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each Party shall of the parties hereto agrees to use its reasonable best efforts to consummate the transactions contemplated hereby as soon as practicable after the date hereof. Subject to the terms and conditions of this Agreement, without limiting the foregoing, (and, in the case of Parent, cause i) each of the other Buyer Group Parties to) parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions and necessary to do, or cause to be done, comply promptly with all things necessary, proper or advisable legal requirements under applicable Laws to consummate the transactions contemplated by this Agreement as soon as practicable, including preparing and filing as promptly as practicable, all documentation to effect all necessary notices, reports and other filings and obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers, permits, clearances and Orders necessary or advisable to Law that may be obtained from any third party or any Governmental Authority in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing.
(b) Without limiting the generality of the foregoing, as soon as practicable after the date of this Agreement, Parent shall (i) use reasonable best efforts to cause the relevant investors to make the filings with the NDRC, the Ministry of Commerce of China and SAFE or their respective local commissions and/or branches pursuant to the Administrative Measures imposed on Enterprise Outbound Investment (企业境外投资管理办法) of the PRC, as amended, and the rules and regulations thereunder, itself with respect to such investors’ investments in relation to the transactions contemplated by this Agreement hereby (which actions shall include furnishing all information requested in connection with approvals of or filings with any Governmental Entity) and related outbound indirect investments as set out shall promptly cooperate with and furnish information to each other in further detail connection with any such requests to any of them or any of their Affiliates in Schedule 7.1(c) of this Agreement, and promptly confirm to connection with the Company in writing when such filings have been made, transactions contemplated hereby and (ii) initiate a pre-filing consultation with the NDRC as to whether the Merger is subject to the review each of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRC.
(c) If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. In furtherance of and not in limitation of the foregoing, the Company and Parent shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Effective Time to occur prior to the End Date. Without limiting the foregoing, the Company and Parent shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company or Parent or any Affiliate of the Company or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of the Company or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in this Agreement, the parties hereto understand and agree that in no event shall the Company be required to (and the Company shall not be in breach of this Agreement for failure to) take any action in respect of, or agree or commit to, (x) any sale, divestiture, disposition of any asset or business of the Company or its Subsidiaries or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, in each case of (x) and (y), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective Time.
(d) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall use its reasonable best efforts to obtain (and, in the case of Parent, cause each of the other Buyer Group Parties to, in the case of Company, and shall cause the Subsidiaries of the Company to) (i) cooperate with each other in connection with obtaining) any filing consent, authorization, order or submission with approval of, or any exemption by, any Governmental Authority and in connection with any investigation Entity required or other inquiry by any Governmental Authority, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause advisable to be taken, all appropriate action, and to do, obtained or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated hereby, including employing such resources as are necessary to obtain the Required Regulatory Approvals; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable for any application or other filing to be made by the other Party to Sellers or the Buyer or any Governmental Authority pursuant to any applicable Law of their Affiliates in connection with the transactions contemplated by this Agreement. Subject to the terms and conditions set forth in this Agreement, including application or filing each of the parties hereto agrees to obtain the Required Regulatory Approvals; (iii) promptly notify the other Party of any substantive (whether verbal or written) communication received by such Party frommake all appropriate filings, or given by such Party to, notices and registrations with any Governmental Authority regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the other Party promptly with copies of all written correspondence and communications between them and any Governmental Authority Entity with respect to the transactions contemplated hereby, including communications and correspondences in relation to obtaining the Required Regulatory Approvals; (iv) respond hereby as promptly as reasonably practicable after the date of this Agreement in order to obtain any inquiries received fromconsent, and supply as promptly as reasonably practicable authorization, order or approval of, or any additional information or documentation that may be requested exemption by, any Governmental Authority Entity required or advisable to be obtained or made by the parties hereto or any of their Affiliates in connection with the taking of any action contemplated thereby or by this Agreement.
(b) Subject to the terms and conditions set forth in this Agreement, without limiting the generality of the undertakings referenced in Section 6.4(a), each of the Sellers (in the case of clauses ii of this Section 6.4(b) and the Buyer (in all cases set forth below) agree to take or cause to be taken the following actions:
(i) the prompt use of its best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated by this Agreement; and
(ii) the prompt use of its best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding, review or inquiry of any kind that would make the consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby, including inquiriesany and all steps (including, information the appeal thereof, the posting of a bond or documentation in relation the taking of the steps contemplated by clause i of this Section 6.4b)) necessary to obtaining resist, vacate, modify, reverse, suspend, prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement.
(c) Subject to applicable Law, each party to this Agreement shall promptly notify the Required Regulatory Approvals; and (v) other party of any communication it receives from any Governmental Entity relating to the matters that are the subject of this Agreement, shall permit the other Party party to reviewreview in advance any proposed communication by such party to any Governmental Entity, and to shall provide each other with copies of all correspondence or communications between them or any of their Affiliates, on the extent practicable consult with one hand, and any Governmental Entity or members of its staff, on the other Party hand, subject to this Section 6.4. No party to this Agreement shall agree to participate in advance and consider in good faith the other Party’s reasonable comments in connection with, any material communication meeting with any Governmental Authority in connection with the transactions contemplated hereby, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be entitled to redact materials (1) as necessary to comply with contractual arrangements, (2) as necessary to address reasonable legal privilege or confidentiality concerns, determined based on the advice of such Party’s outside legal counsel, or (3) to the extent relating to the Company’s valuation and similar matters relating to the Merger.
(e) No Party shall independently participate in any substantive meeting or communication with any Governmental Authority Entity in respect of any filingsuch filings, investigation or other inquiry relating to the transactions contemplated hereby without giving unless it consults with the other Parties sufficient prior notice of such meeting or communication parties in advance and, to the extent permitted by such Governmental AuthorityEntity, giving gives the other Parties parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement and to this Section 6.4(c), the parties to this Agreement will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing.
(d) The Sellers shall use commercially reasonable efforts to obtain any consent of any Person (other than Governmental Entities) required to consummate and make effective the transactions contemplated by this Agreement. The Buyer agrees to cooperate reasonably with the Sellers in obtaining such consents. To the extent that the Sellers and the Buyer are unable to obtain any required Third Party Consents prior to the Closing, the parties shall seek such consents following the Closing in accordance with Section 6.12. For purposes of this Section 6.4, the term “commercially reasonable efforts” shall not be deemed to require any Person to pay or participate commit to pay any amount to (or incur any obligation in such meeting favor of) any Person from whom any consent or communicationwaiver may be required.
Appears in 1 contract
Further Action; Efforts. (a) Subject to Upon the terms and subject to the conditions of this AgreementAgreement (including Section 5.7(h)), each Party of the parties shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties to) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law) (other than under any applicable Gaming Law) to consummate the transactions contemplated by this Agreement at the earliest practicable date, including using reasonable best efforts to: (i) cause the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and take such actions as are reasonably necessary to obtain any requisite consent (other than Gaming Approvals) or expiration of any applicable waiting period under the HSR Act and other Antitrust Laws; (ii) defend all Actions by or before any Governmental Entity (other than any Gaming Authority) challenging this Agreement or the consummation of the Merger; and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law raised by any Governmental Entity (other than any or Gaming Authority) and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity (other than any or Gaming Authority) that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement (provided, however, that the Company shall not be required to incur any liabilities or pay more than a nominal sum to obtain any such consents, registrations, approvals, permits and authorizations). Upon the terms and subject to the conditions of this Agreement (including Section 5.7(g)), each of Parent and Merger Sub shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Gaming Laws to consummate the transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, including preparing using best efforts to: (i) cause the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and take such actions as are reasonably necessary to obtain any requisite Gaming Approvals; (ii) defend all Actions by or before any Gaming Authority challenging this Agreement or the consummation of the Merger; and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Gaming Authority and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Gaming Authority that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement (provided, however, that the Company shall not be required to incur any liabilities or pay more than a nominal sum to obtain any such consents, registrations, approvals, permits and authorizations).
(b) In furtherance and not in limitation of the provisions of Section 5.7(a), each of the parties, as applicable, agrees to (i) prepare and file as promptly as practicable, all documentation to effect all necessary notices, reports and other filings and obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers, permits, clearances and Orders necessary or advisable to be obtained in any event by no later than ten (10) Business Days from any third party or any Governmental Authority in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing.
(b) Without limiting the generality of the foregoing, as soon as practicable after the date of this Agreement, an appropriate filing of a Notification and Report Form pursuant to the HSR Act and (ii) prepare and file as promptly as practicable any notification or other form necessary to obtain any consents, clearances or approvals required under or in connection with any other applicable Antitrust Law. The Company and Parent will each request early termination of the waiting period with respect to the Merger under the HSR Act. Nothing in this Agreement will require the Company or its Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon Closing. The Company and the Parent shall each pay fifty percent (50%) of any filing fees and other charges for the filings required under the HSR Act by the Company and Parent.
(c) In furtherance and not in limitation of the provisions of Section 5.7(a), Parent and Merger Sub agree to, and agree to cause their Affiliates and their respective directors, officers, partners, managers, members, principals and stockholders to, prepare and submit to the Gaming Authorities as promptly as practicable, and in any event no later than 30 calendar days from the date of this Agreement, all applications and supporting documents necessary to obtain all required Gaming Approvals. Any fees, costs and expenses incurred in connection with obtaining Gaming Approvals will be borne by Parent.
(d) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or any of the transactions contemplated hereby, including a Second Request for Information under the HSR Act, or requests for supporting, supplemental or additional documentation from any Gaming Authorities, then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response that is, at a minimum, in substantial compliance with such request.
(e) The parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) use reasonable best efforts cooperating with each other in connection with filings required to cause be made by any party under any Antitrust Law or applicable Gaming Law and liaising with each other in relation to each step of the procedure before the relevant investors Governmental Entities and as to the contents of all communications with such Governmental Entities. In particular, to the extent permitted by Law or a Governmental Entity, no party will make any notification in relation to the filings transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the NDRCrelevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the Ministry of Commerce of China and SAFE other party in this respect;
(ii) furnishing to the other party all information within its possession that is required for any application or their respective local commissions and/or branches other filing to be made by the other party pursuant to the Administrative Measures on Enterprise Outbound Investment applicable Law in connection with the transactions contemplated by this Agreement;
(企业境外投资管理办法iii) promptly notifying each other of the PRC, as amended, and the rules and regulations thereunder, any communications from or with any Governmental Entity with respect to such investors’ investments in relation to the transactions contemplated by this Agreement and related outbound indirect investments as set out in further detail in Schedule 7.1(c) ensuring to the extent permitted by Law or Governmental Entity that each of the parties is entitled to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement;
(iv) consulting and cooperating with one another in connection with all analyses, appearances, presentations, memoranda, briefs, arguments, opinions and promptly confirm proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the Company Antitrust Laws or applicable Gaming Laws; and
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in writing when such filings have been made, and (ii) initiate a pre-filing consultation all respects with the NDRC as to whether other in defending Actions by or before any Governmental Entity challenging this Agreement or the Merger is subject to the review consummation of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRCtransactions contemplated by this Agreement.
(ci) If, at any time after the Effective Time, any further action is necessary or desirable Subject to carry out the purposes of this AgreementSection 5.7(h), the proper officers and directors of each Party parties shall use their respective reasonable best efforts to take all such action. In furtherance of and not in limitation of the foregoing, the Company and Parent shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Effective Time to occur prior to the End Date. Without limiting the foregoing, the Company and Parent shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company or Parent or any Affiliate of the Company or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of the Company or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in this Agreement, the parties hereto understand and agree that in no event shall the Company be required to (and the Company shall not be in breach of this Agreement for failure to) take any action in respect of, or agree or commit to, (x) any sale, divestiture, disposition of any asset or business of the Company or its Subsidiaries or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, in each case of (x) and (y), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective Time.
(d) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties to, in the case of Company, shall cause the Subsidiaries of the Company to) (i) cooperate with each other in connection with any filing or submission with any Governmental Authority and in connection with any investigation or other inquiry by any Governmental Authority, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause to be taken, all appropriate actionother action and to do, or cause to be done, all things necessary, proper or advisable under all Antitrust Laws to consummate the transactions contemplated by this Agreement, including:
(A) using its reasonable best efforts to promptly obtain the expiration of all waiting periods (including, if permitted by applicable Law, requesting early termination of such waiting periods); and
(B) using its reasonable best efforts to promptly obtain all other approvals and any other consents of any Governmental Entity (other than any Gaming Authority) required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement.
(ii) Subject to Section 5.7(g), the parties shall use their respective best efforts to take, or cause to be taken, all other action and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise Gaming Laws, to consummate and make effective the transactions contemplated hereby, including employing such resources as are necessary to obtain the Required Regulatory Approvals; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable for any application or other filing to be made by the other Party to any Governmental Authority pursuant to any applicable Law in connection with the transactions contemplated by this Agreement, including application or filing including:
(A) using its best efforts to promptly obtain the Required Regulatory Approvalsexpiration of all waiting or notice periods (including, if permitted by applicable Law, requesting early termination of such waiting or notice periods) under or with respect to Gaming Laws; and
(iiiB) using its best efforts to promptly notify the obtain all other Party approvals and any other consents of any substantive (whether verbal or written) communication received by such Party from, or given by such Party to, any Governmental Gaming Authority regarding any of required to be obtained in order for the parties to consummate the transactions contemplated hereby andby this Agreement.
(g) Notwithstanding anything to the contrary set forth in this Agreement (including as otherwise set forth in this Section 5.7), subject in connection with any Gaming Approvals or Gaming Laws, in no event shall Parent or any of its Affiliates (including the Surviving Corporation) be required to applicable Lawproffer to, furnish or agree to, agree to (i) any material change or restriction on the proposed capital structure or balance sheet of Parent, Merger Sub, the Surviving Corporation or any of their respective Affiliates, or (ii) any material change (including without limitation, through a franchising or licensing arrangement) or restriction on (other Party promptly with copies than pursuant to any existing legal, regulatory or other similar restrictions), or other material impairment of all written correspondence and communications between them and (x) Parent’s or any Governmental Authority of its Affiliates’ ability to own or operate any material assets (including any real property owned by the Company or any of its Subsidiaries), licenses, operations, rights, product lines, businesses or interest therein of Parent, Merger Sub, the Surviving Corporation or any of their respective Affiliates or (y) Parent’s or any of its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the transactions contemplated herebystock of the Surviving Corporation or any of its Affiliates, or to agree to place any stock or other assets or an operating property in trust upon the Closing.
(h) Notwithstanding anything to the contrary set forth in this Agreement (including communications and correspondences as otherwise set forth in relation to obtaining the Required Regulatory Approvals; (iv) respond as promptly as reasonably practicable to any inquiries received fromthis Section 5.7), and supply as promptly as reasonably practicable any additional information or documentation that may be requested by, any Governmental Authority other than in connection with any Gaming Approval or Gaming Laws, in no event shall Parent or any of its Affiliates (including the transactions contemplated herebySurviving Corporation) be required to (i) proffer to, including inquiriesor agree to, information sell, divest, lease, license, transfer, dispose of or documentation in relation otherwise encumber or hold separate and agree to obtaining sell, divest, lease, license, transfer, dispose of or otherwise encumber before or after the Required Regulatory Approvals; and (v) permit the other Party to review, and to the extent practicable consult with the other Party in advance and consider in good faith the other Party’s reasonable comments in connection withEffective Time, any material communication assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by the Parent, Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates of any of their respective material assets, licenses, operations, rights, product lines, businesses or interest therein or to any agreement by the Parent, Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates to take any of the foregoing actions) or to agree to (A) any material change or restriction on the proposed capital structure or balance sheet of Parent, Merger Sub, the Surviving Corporation or any of their respective Affiliates, or (B) any material change (including without limitation, through a franchising or licensing arrangement or a change in the proposed capital structure or balance sheet) or restriction on, or other material impairment of Parent’s or any of its Affiliates’ ability to own or operate any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or any of its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the stock of the Surviving Corporation or any Governmental Authority of its Affiliates, or to agree to place any stock or other assets or an operating property in trust upon the Closing, or (ii) make any material payments, other than filing fees required by Law, or provide any other material consideration in connection with any waiver or consent reasonably necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated herebyhereby (or to consent to any material payment, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be entitled to redact materials (1) as necessary to comply with contractual arrangements, (2) as necessary to address reasonable legal privilege or confidentiality concerns, determined based on the advice of such Party’s outside legal counselother than filing fees required by Law, or (3) to the extent relating to provide any other material consideration by Parent, Merger Sub, the Company’s valuation and similar matters relating to , the MergerSurviving Corporation or any of their respective Affiliates in connection with such waivers or consents).
(ei) No Party shall independently participate in any substantive meeting Notwithstanding the foregoing, commercially or communication with any Governmental Authority in respect competitively sensitive information and materials of any filing, investigation or other inquiry relating a party will be provided to the transactions contemplated hereby without giving the other Parties sufficient prior notice of such meeting or communication andparty on an outside counsel-only basis while, to the extent permitted by such Governmental Authorityfeasible, giving making a version in which the commercial or competitively sensitive information has been redacted available to the other Parties party.
(j) For purposes of this Agreement, “Antitrust Law” means the opportunity ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended and all other Laws that are designed or intended to attend prohibit, restrict or participate in such meeting regulate actions having the purpose or communicationeffect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 1 contract
Sources: Merger Agreement (Affinity Gaming)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts to (and, in the case of Parent, shall cause each of the other Buyer Parent Group Parties to) use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations or pursuant to any contract or agreement to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and advisable (and in any event no later than the End Date) and to consummate the Merger and the other transactions contemplated by this Agreement as soon as reasonably practicable, including (i) preparing and filing as promptly as practicable, reasonably practicable all documentation to effect all necessary notices, reports and other filings and filings, (ii) obtaining as promptly as reasonably practicable (and in any event no later than the End Date) all actions or nonactions, waivers, consents, registrations, expirations or terminations of waiting periods, approvals, registrations, authorizations, waivers, permits, clearances permits and Orders authorizations necessary or advisable to be obtained from any third party or any Governmental Authority Entity in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing.
(b) Without limiting the generality of the foregoing, as soon as practicable after the date of this Agreement, Parent shall (i) use reasonable best efforts to cause the relevant investors to make the filings with the NDRC, the Ministry of Commerce of China and SAFE or their respective local commissions and/or branches pursuant to the Administrative Measures on Enterprise Outbound Investment (企业境外投资管理办法) of the PRC, as amended, and the rules and regulations thereunder, with respect to such investors’ investments in relation to the transactions contemplated by this Agreement and related outbound indirect investments as set out in further detail in Schedule 7.1(c(iii) of executing and delivering any additional instruments necessary to consummate the transactions contemplated by this Agreement, and promptly confirm to the Company in writing when such filings have been made, and (ii) initiate a pre-filing consultation with the NDRC as to whether the Merger is subject to the review of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRC.
(c) If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. In furtherance of and not in limitation of the foregoing, (A) each Party hereto agrees to file, or cause to be filed, all appropriate Notification and Report Forms pursuant to the HSR Act within 20 Business Days after the date hereof, and to cause the filings made under the HSR Act to be considered for a grant of “early termination,” and (B) each Party hereto agrees to and to file, or cause to be filed, any filing (or, for jurisdictions where submission of a draft prior to formal notification is appropriate, a draft thereof) required under any other applicable Antitrust or Foreign Investment Law, and any such filing or draft thereof listed in Section 6.4(a) of the Company and Parent shall offer to take (and if such offer is acceptedDisclosure Letter, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority with respect to the Merger so transactions contemplated hereby as promptly as practicable and in any event within 20 Business Days of the date hereof (unless otherwise agreed to enable by the Effective Time Parties), and to occur prior supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the End Date. Without limiting the foregoing, the Company HSR Act or such other Antitrust or Foreign Investment Law and Parent shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company or Parent or any Affiliate of the Company or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if all other actions necessary, proper or advisable to cause the offer is accepted, take expiration or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any termination of the businesses, services applicable waiting periods under the HSR Act or assets of the Company such other Antitrust or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in this Agreement, the parties hereto understand and agree that in no event shall the Company be required to (and the Company shall not be in breach of this Agreement for failure to) take any action in respect of, or agree or commit to, (x) any sale, divestiture, disposition of any asset or business of the Company or its Subsidiaries or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, in each case of (x) and (y), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective TimeForeign Investment Law as soon as practicable.
(db) Each In connection with the efforts and obligations referenced in Section 6.4(a) to obtain all requisite actions or nonactions, waivers, consents, registrations, expirations or terminations of waiting periods, approvals, permits and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other applicable Antitrust or Foreign Investment Law, each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties to, in the case of Company, shall cause the Subsidiaries of the Company to) (i) consult and cooperate in all respects with each other in connection with any filing or submission with any Governmental Authority and in connection with any investigation or other inquiry by any Governmental Authorityinquiry, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated hereby, including employing such resources as are necessary to obtain the Required Regulatory Approvals; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable required for any application or other filing to be made by the other Party to any Governmental Authority pursuant to any applicable Law in connection with the transactions contemplated by this Agreement, including application or filing to obtain the Required Regulatory Approvals; (iii) promptly notify the other Party of any substantive (whether verbal or written) communication received by such Party from, or given by such Party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Authority Entity, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the other Party promptly with copies of all written correspondence correspondence, filings and communications between them and the FTC, the DOJ or any other Governmental Authority Entity with respect to the transactions contemplated herebyby this Agreement, including communications and correspondences in relation to obtaining the Required Regulatory Approvals; (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested byby the FTC, the DOJ or by any other Governmental Authority Entity in connection with the respect of such registrations, declarations and filings or such transactions contemplated hereby, including inquiries, information or documentation in relation to obtaining the Required Regulatory Approvals; and (v) permit the other Party to reviewreview any communication given by it to, and to the extent practicable consult with the each other Party in advance advance, and consider in good faith the other Party’s reasonable comments in connection with, any material communication with filing, notice, application, submission, communication, meeting or conference with, the FTC, the DOJ or any other Governmental Authority Entity or, in connection with the transactions contemplated herebyany proceeding by a private party, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be entitled to redact materials (1) as necessary to comply with contractual arrangements, (2) as necessary to address reasonable legal privilege or confidentiality concerns, determined based on the advice of such Party’s outside legal counsel, or (3) to the extent relating to the Company’s valuation and similar matters relating to the Merger.
(e) any other Person. No Party shall independently participate in any substantive meeting or communication with any Governmental Authority Entity in respect of any such filing, investigation or other inquiry relating to the transactions contemplated hereby Section 6.4(a) or Section 6.4(b) without giving the other Parties sufficient prior notice of such the meeting or communication and, to the extent permitted by such Governmental AuthorityEntity, giving the other Parties the opportunity to attend or participate in such meeting or communication. Without limiting the foregoing, Parent shall have the right to direct the strategy with respect to actions to obtain all required approvals relating to Section 6.4(a), including deciding whether the Parties commit to or agree with any Governmental Entity to stay, toll or extend any applicable waiting period, “pull-and-refile” pursuant to 16 C.F.R. 804.16 any filing made under the HSR Act, enter into a timing agreement, including any agreement to delay the consummation or not to consummate the transactions contemplated by this Agreement; provided that Parent shall cooperate and consult in good faith with the Company regarding such action.
(c) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Parent shall, and shall cause each member of the Parent Group to, take any and all steps necessary, proper or advisable to (i) resolve, avoid, or eliminate impediments or objections, if any, that may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust or Foreign Investment Law or (ii) avoid the entry of, effect the dissolution of, and have vacated, modified, suspended, eliminated, lifted, reversed or overturned, any decree, decision, determination, order or judgment entered or issued, or that becomes reasonably foreseeable to be entered or issued, that would, or would reasonably be expected to, prevent, restrain, enjoin, prohibit, make unlawful, restrict or delay the consummation of the contemplated transactions, so as to enable the Parties to close the contemplated transactions as expeditiously as practicable (but in no event later than the End Date), including (A) the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person or entity (including any Governmental Entity) seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement and (B) (1) proposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate orders or otherwise, the sale, lease, divestiture, disposition or license (or holding separate pending such disposition) of any assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Parent or any member of the Parent Group, or the Company or its Subsidiaries or any interest therein, (2) otherwise taking or committing or agreeing to restrictions or actions that, after the Effective Time, would limit Parent’s, any member of the Parent Group’s or the Company’s or its Subsidiaries’ freedom of action or operations with respect to, or its or their ability to retain, any assets, operations, rights, product lines, licenses, properties, products, services or businesses of Parent, the Parent Group or the Company or its Subsidiaries or any interest or interests therein, (3) restricting, limiting or eliminating any governance rights (including voting power, consent rights, board of directors nomination or designation rights, board observer rights and ownership or equity interests) with respect to Parent or its Affiliates (including the Company) and their respective Subsidiaries or (4) agreeing to enter into, modify or terminate existing contractual relationships, contractual rights or contractual obligations, and promptly effecting the sale, lease, license, divestiture, disposal and holding separate of, assets, operations, rights, product lines, licenses, properties, products, services or businesses of Parent, the Parent Group or the Company or its Subsidiaries or any interest or interests therein and the entry into agreements with, and submission to orders of, the relevant Governmental Entity giving effect thereto or to such restrictions or actions (such sale, lease, license, divestiture, disposal and holding separate or other action described in clause (B), a “Regulatory Remedy”). Nothing in this Section 6.4(c) shall require the Company to effectuate or agree to effectuate any Regulatory Remedy unless such Regulatory Remedy is conditioned upon the Closing and only effective following the Closing. Notwithstanding the foregoing or any other provision of this Agreement, Parent Group shall not be required to agree to any Regulatory Remedy with respect to (i) any Affiliate (other than the “ultimate parent entity” of Parent (as such term is defined in C.F.R. 801.1(a)(3)) and any Subsidiary of Parent) and, subject to clause (ii) hereof, each entity “controlled” by such “ultimate parent entity” (as such term is defined in 16 C.F.R. 801.1(a)(3)) or (ii) any Portfolio Company (other than with respect to the Company and its Subsidiaries).
(d) Subject to the obligations under Section 6.4(b) and Section 6.4(c), in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Merger or any other transaction contemplated by this Agreement or by any other agreement contemplated hereby, (i) each of Parent, Merger Sub and the Company shall, and Parent shall cause each member of the Parent Group to, cooperate in all respects with each other and use its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, modified, suspended, eliminated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prevents, restrains, enjoins, prohibits, makes unlawful, restricts or delays consummation of the transactions contemplated by this Agreement, and (ii) Parent and Merger Sub shall, and Parent shall cause each member of the Parent Group to, defend, at their cost and expense, any action or actions, whether judicial or administrative, in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, no Party shall be required to agree to any term or take any action in connection with its obligations under this Section 6.4(d) that is not conditioned upon consummation of the Merger. Notwithstanding the foregoing, except as expressly set forth in Article VII, obtaining any approval or consent from any Person pursuant to this Section 6.4 (including Section 6.4(a)(ii)) shall not be a condition to the obligations of the Parties to consummate the transactions contemplated by this Agreement.
(e) Parent shall, and shall cause its Subsidiaries, the “ultimate parent entity” of Parent (as such term is defined in C.F.R. 801.1(a)(3)) and each entity “controlled” by such “ultimate parent entity” (as such term is defined in C.F.R. 801.1(a)(3)), not to, take any action, including acquiring or agreeing to acquire, including by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any Person, corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, properties or equity interests, if the entering into of a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation or such other action would reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under Antitrust or Foreign Investment Laws; (ii) materially increase the risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to remove any such order on appeal under Antitrust or Foreign Investment Laws; or (iv) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.
(f) Notwithstanding the foregoing, commercially or competitively sensitive information and materials of a Party may, as such Party may deem advisable and necessary, be provided to the other Party on an outside-counsel-only basis while, to the extent feasible, making a version in which the commercially or competitively sensitive information has been redacted available to the other Party. Materials provided to the other Party or its counsel may be redacted to remove references (i) concerning the Company’s or its advisors’ analysis of the valuation of the Company, (ii) as necessary to comply with contractual arrangements or address reasonable attorney-client privilege or confidentiality concerns or (iii) concerning other competitively sensitive material.
(g) Parent will be solely responsible for, and pay, all filing fees payable to Governmental Entities under any Antitrust or Foreign Investment Law.
Appears in 1 contract
Sources: Merger Agreement (ODP Corp)
Further Action; Efforts. (a) Subject to the terms and conditions of this Agreement, each Party shall use its reasonable best efforts to (and, in the case of Parent, cause each of its subsidiaries and controlled Affiliates (collectively, the other Buyer Group Parties “Parent Group”) to) use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations or pursuant to any contract or agreement to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and advisable (and in any event no later than the End Date) and consummate the Merger and the other transactions contemplated by this Agreement as soon as reasonably practicable, including preparing and filing as promptly as practicable, reasonably practicable all documentation to effect all necessary notices, reports and other filings and filings, obtaining as promptly as reasonably practicable (and in any event no later than the End Date) all actions or nonactions, waivers, consents, registrations, expirations or terminations of waiting periods, approvals, registrations, authorizations, waivers, permits, clearances permits and Orders authorizations necessary or advisable to be obtained from any third party or any Governmental Authority Entity in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing.
(b) Without limiting the generality of the foregoing, as soon as practicable after the date of this Agreement, Parent shall (i) use reasonable best efforts to cause the relevant investors to make the filings with the NDRC, the Ministry of Commerce of China and SAFE or their respective local commissions and/or branches pursuant to the Administrative Measures on Enterprise Outbound Investment (企业境外投资管理办法) of the PRC, as amended, and the rules and regulations thereunder, with respect to such investors’ investments in relation to the transactions contemplated by this Agreement and related outbound indirect investments as set out in further detail in Schedule 7.1(c) of executing and delivering any additional instruments necessary to consummate the transactions contemplated by this Agreement, and promptly confirm to the Company in writing when such filings have been made, and (ii) initiate a pre-filing consultation with the NDRC as to whether the Merger is subject to the review of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRC.
(c) If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. In furtherance of and not in limitation of the foregoing, each Party hereto agrees to file, or cause to be filed, all appropriate Notification and Report Forms pursuant to the Company and Parent shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority HSR Act with respect to the Merger so transactions contemplated hereby as promptly as practicable and in any event within ten (10) Business Days of the date hereof (unless otherwise agreed to enable by the Effective Time Parties) and to occur file, or cause to be filed, any filing (or, for jurisdictions where submission of a draft prior to the End Date. Without limiting the foregoingformal notification is appropriate, the Company and Parent shall proposea draft thereof) required under any other applicable Antitrust Law, negotiate, offer to commit and effect (and if including any such offer is accepted, commit to and effect), by consent decree, hold separate order, filing or otherwise, the sale, divestiture or disposition of such assets or businesses draft thereof listed in Section 6.4(a) of the Company or Parent or Disclosure Letter with respect to the transactions contemplated hereby as promptly as practicable and in any Affiliate event within thirty (30) Business Days of the Company date hereof (unless otherwise agreed to by the Parties), and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries or otherwise offer to take or offer to commit such other Antitrust Law and to take any action which it is capable of taking and if all other actions necessary, proper or advisable to cause the offer is accepted, take expiration or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any termination of the businesses, services applicable waiting periods under the HSR Act or assets of the Company or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or such other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in this Agreement, the parties hereto understand and agree that in no event shall the Company be required to (and the Company shall not be in breach of this Agreement for failure to) take any action in respect of, or agree or commit to, (x) any sale, divestiture, disposition of any asset or business of the Company or its Subsidiaries or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, in each case of (x) and (y), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective TimeAntitrust Law as soon as practicable.
(db) Each In connection with the efforts and obligations referenced in Section 6.4(a) to obtain all requisite approvals and authorizations or expiration of waiting periods for the transactions contemplated by this Agreement under the HSR Act or any other applicable Antitrust Law, each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties to, in the case of Company, shall cause the Subsidiaries of the Company to) (i) consult and cooperate in all respects with each other in connection with any filing or submission with any Governmental Authority and in connection with any investigation or other inquiry by any Governmental Authorityinquiry, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated hereby, including employing such resources as are necessary to obtain the Required Regulatory Approvals; (ii) subject to applicable Law, furnish to the other Party as promptly as reasonably practicable all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable required for any application or other filing to be made by the other Party to any Governmental Authority pursuant to any applicable Law in connection with the transactions contemplated by this Agreement, including application or filing to obtain the Required Regulatory Approvals; (iii) promptly notify the other Party of any substantive (whether verbal or written) communication received by such Party from, or given by such Party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Authority Entity and of any substantive communication received or given in connection with any proceeding by a private Party, in each case regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the other Party promptly with copies of all written correspondence correspondence, filings and communications between them and the FTC, the DOJ or any other Governmental Authority Entity with respect to the transactions contemplated hereby, including communications and correspondences in relation to obtaining the Required Regulatory Approvalsby this Agreement; (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested byby the FTC, the DOJ or by any other Governmental Authority Entity in connection with the transactions contemplated herebyrespect of such registrations, including inquiries, information declarations and filings or documentation in relation to obtaining the Required Regulatory Approvalssuch transactions; and (v) permit the other Party to reviewreview any substantive communication given by it to, and to the extent practicable consult with the each other Party in advance advance, and consider in good faith the other Party’s reasonable comments in connection with, any material communication with filing, notice, application, submission, communication, meeting or conference with, the FTC, the DOJ or any other Governmental Authority Entity or, in connection with the transactions contemplated herebyany proceeding by a private party, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be entitled to redact materials (1) as necessary to comply with contractual arrangements, (2) as necessary to address reasonable legal privilege or confidentiality concerns, determined based on the advice of such Party’s outside legal counsel, or (3) to the extent relating to the Company’s valuation and similar matters relating to the Merger.
(e) any other Person. No Party shall independently participate in any substantive meeting or communication with any Governmental Authority Entity in respect of any filingsuch filings, investigation or other inquiry relating to the transactions contemplated hereby Section 6.4(a) or Section 6.4(b) without giving the other Parties sufficient prior notice of such the meeting or communication and, to the extent permitted by such Governmental AuthorityEntity, giving the other Parties the opportunity to attend or participate in such substantive meeting or communication. Without limiting the foregoing, neither Parent nor any member of the Parent Group shall withdraw any filing made under the HSR Act or other applicable Antitrust Law or refile such filing, in each case, except with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to the obligations under Section 6.4(d), in no event shall Parent or any other member of the Parent Group be required to, and the Company, without the prior written consent of Parent, shall not and shall not agree to, take steps to (x) resolve, avoid, or eliminate impediments or objections, if any, that may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law or (y) avoid the entry of, effect the dissolution of, and have vacated, modified, suspended, eliminated, lifted, reversed or overturned, any decree, decision, determination, order or judgment entered or issued, or that becomes reasonably foreseeable to be entered or issued, that would, or would reasonably be expected to, prevent, restrain, enjoin, prohibit, make unlawful, restrict or delay the consummation of the contemplated transactions, including (i) proposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate orders or otherwise, the sale, lease, divesture, disposition, or license (or holding separate pending such disposition) of any assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Parent or any member of the Parent Group, or the Company or its subsidiaries or any interest therein, (ii) otherwise taking or committing or agreeing to restrictions or actions that after the Effective Time would limit Parent’s, any member of the Parent Group’s, or the Company’s or its subsidiaries’ freedom of action or operations with respect to, or its or their ability to retain, any assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Parent, the Parent Group or the Company or its subsidiaries or any interest or interests therein or (iii) agreeing to enter into, modify or terminate existing contractual relationships, contractual rights or contractual obligations, and promptly effecting the sale, lease, license, divestiture, disposal and holding separate of, assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Parent, the Parent Group, or the Company or its subsidiaries or any interest or interests therein and the entry into agreements with, and submission to orders of, the relevant Governmental Entity giving effect thereto or to such restrictions or actions.
(d) In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, (i) each of Parent, Merger Sub and the Company shall, and Parent shall cause each member of the Parent Group to, cooperate in all respects with each other and use its respective best efforts to contest and resist any such action or proceeding and to have vacated, modified, suspended, eliminated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prevents, restrains, enjoins, prohibits, makes unlawful, restricts or delays consummation of the transactions contemplated by this Agreement, and (ii) Parent and Merger Sub shall, and Parent shall cause each member of the Parent Group to, defend, at their cost and expense, any action or actions, whether judicial or administrative, in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, none of the Company, Parent or any other member of the Parent Group shall be required to agree to any term or take any action in connection with its obligations under this Section 6.4(d) that is not conditioned upon consummation of the Merger. Notwithstanding the foregoing, except as set forth in Article VII, obtaining any approval or consent from any Person pursuant to this Section 6.4 shall not be a condition to the obligations of the Parties to consummate the transactions contemplated by this Agreement. Subject to the terms of this Section 6.4, and subject to Parent consulting with and considering in good faith the views and comments of the Company, Parent shall have the right to (x) direct, devise and implement the strategy for obtaining any necessary approval of, and for responding to any request from, or inquiry or investigation by (including directing the nature and substance of all such responses), and lead all meetings and communications (including any negotiations) with, any Governmental Entity in connection with any regulatory filings made under any applicable Law in connection with the transactions contemplated by this Agreement and (y) control the defense and settlement of any investigation or Proceeding relating to the transactions contemplated by this Agreement.
(e) Notwithstanding the foregoing, commercially or competitively sensitive information and materials of a Party will be provided to the other Party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial or competitively sensitive information has been redacted available to the other Party. Materials provided to the other Party or its counsel may be redacted to remove references (i) concerning the valuation of the Company, (ii) as necessary to comply with contractual arrangements, (iii) as necessary to address reasonable attorney-client privilege or confidentiality concerns, or (iv) other competitively sensitive material.
(f) Parent will be solely responsible for and pay all filing fees payable to Governmental Entities under any Antitrust Law.
Appears in 1 contract