Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws. (b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller will use its commercially reasonable 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 this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein. (c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority. (d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only. (e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 3 contracts
Sources: Merger Agreement (Kenexa Corp), Merger Agreement (Kenexa Corp), Merger Agreement (Kenexa Corp)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller the parties hereto will use its commercially 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 this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) Merger as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests petitions and other documents filings and to obtain as promptly as reasonably practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings permits and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary necessary, proper or advisable to obtain all such material consents, clearances, waivers, licenses, orders, registrations, permitsapprovals, permits and authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees (i) to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and hereby; (ii) to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and Law; (iii) to use their reasonable best efforts to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable practicable; and (iv) not to extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a any other Governmental Authority not to consummate the transactions contemplated by this Agreement, without except with the prior consultation and the written consent of Parent, the other party hereto (which consent shall not be unreasonably withheld withheld, conditioned or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(cb) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller the parties hereto shall, in connection with the efforts referenced in Section 7.1(b6.3(a) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(dc) Notwithstanding anything If any objections are asserted with respect to the contrary in this Agreementtransactions contemplated hereby under any Regulatory Law or if any Action, neither Parent nor Purchaser whether judicial or administrative, is instituted by any Governmental Authority or any private party challenging any of the transactions contemplated hereby as violative of any Regulatory Law, each of the parties hereto shall have an obligation under this Agreementuse its reasonable best efforts to: (i) oppose or defend against any action to divest prevent or agree to divest enjoin consummation of this Agreement (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assetsand the transactions contemplated herein); or and/or (ii) subject to defend against Section 6.3(d), take such action as reasonably necessary to overturn any litigation action by any Government Authority or private party to block consummation of this Agreement (and the transactions contemplated herein), including by defending any Action brought by any Governmental Authority relating or private party in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein, or in order to resolve any such objections or challenge as such Governmental Authority or private party may have to such transactions under such Regulatory Law so as to permit consummation of the transactions contemplated by this Agreement. Notwithstanding anything , provided that each of the parties hereto shall cooperate with one another in connection with all proceedings related to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel onlyforegoing and Parent shall have final decision-making authority with respect thereto.
(ed) Notwithstanding anything in this Agreement Subject to the contrarySection 6.3(e), Seller “reasonable best efforts” shall notnot include nor require any party or its Subsidiaries to (A) propose, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not or offer to commit or agree to or effect, effect by consent decree, hold separate order order, or otherwise, the sale, divestiture, license, disposition or hold separate of any asset, in each case if such sale, divestiture, license, disposition or hold separate with respect thereto would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect (after giving effect to the Merger), or (B) conduct or agree to conduct its business in any particular manner if such conduct or agreement with respect thereto would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect (after giving effect to the Merger) (any of the foregoing effects, a “Burdensome Effect”). Notwithstanding anything herein to the contrary, (i) neither the Company nor its Subsidiaries shall propose, negotiate or offer to commit to any sale, divestiture, license, disposition or hold separate of any asset contemplated to be held by the Surviving Entity following the consummation of the Merger without the prior written consent of Parent and (ii) neither Parent nor the Company shall be required to agree to any divestiture, sale or other disposition of any of the assets listed on Section 6.3 of the Parent Disclosure Letter.
(e) If Parent elects to propose, negotiate, or offer to commit to and effect by consent decree, hold separate order, or otherwise, any sale, divestiture, license, disposition, prohibition or limitation or other action of a type described in Section 7.1(e6.3(d) with respect to any assets or businesses of Parent or any of its Subsidiaries, or effective as of the Effective Time, the Company or its Subsidiaries or the Surviving Entity or its Subsidiaries, the Company and its Subsidiaries shall, and shall cause their respective Representatives to, reasonably cooperate in all respects as requested by Parent in connection with any such sale, divestiture, license, disposition, prohibition or limitation or other action of a type described in Section 6.3(d), so long as such sale, divestiture, license, disposition, prohibition or limitation or other action is to be effective only as of the Effective Time.
Appears in 3 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and the Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholdersstockholders of Seller, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms The parties hereto shall cooperate with each other and conditions of this Agreement, each of Parent, Purchaser and Seller will use its commercially reasonable best efforts to takepromptly (i) prepare and file all necessary documentation, or cause to be takeneffect all applications, notices, petitions and filings as soon as reasonably practicable, to obtain as promptly as reasonably practicable all actions permits, consents, approvals, authorizations and to doclearances, or cause to be doneincluding under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act, (the ‘‘HSR Act’’) of all things necessary, proper third parties and Governmental Authorities which are necessary or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof), including (i) preparing and filing, in consultation to comply with the other party terms and as promptly as practicable and advisable after the date hereofconditions of all such permits, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings approvals and authorizations necessary to be obtained from of all such third parties and Governmental Authorities, including, without limitation, landlord consents; (ii) defend any third party and/or any Governmental Authority in order to consummate lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Offer, the Merger or any consummation of the other transactions contemplated by this Agreement and (iiiii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders execute and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable deliver any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably instruments necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary The parties further agree to obtain any regulatory approval pursuant use reasonable best efforts to any Regulatory Lawoffer to take, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened cause to be instituted)taken, challenging the Offer, the Merger or any all other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser actions and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Actiondo, or (z) avoid the entry of cause to be done, all other things necessary, proper or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser advisable to consummate and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for make effective the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiryAgreement, including any proceeding initiated by a private partytaking all such further action as reasonably may be necessary to resolve such objections, (ii) promptly inform if any, as the other party of any communication received by such party from, or given by such party toUnited States Federal Trade Commission, the Antitrust Division of the United States Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”) state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, person may assert under Regulatory Law (iiias hereinafter defined) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything , and to avoid or eliminate each and every impediment under any law that may be asserted by any Governmental Authority with respect to the contrary contained in transactions contemplated by this Agreement so as to enable the Closing to occur as soon as expeditiously possible. The parties agree that, subject to the last sentence of this Section 7.1(d7.1(b), the Parties reserve the right use of ‘‘reasonable best efforts’’ by Parent shall include proposing, negotiating, committing to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effecteffecting, by consent decree, hold separate order or otherwise, (x) the sale, divestiture or disposition of such product lines, assets or businesses of either party or its subsidiaries or Affiliates and (y) restrictions or actions that after the Closing Date would limit the Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding that would otherwise have the effect of preventing or materially delaying the Closing. For purposes of this Agreement, ‘‘Regulatory Law’’ means the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws, including any antitrust, competition or trade regulation laws that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition or (ii) protect the national security or the national economy of any nation. Notwithstanding anything else contained herein, the provisions of this Section 7.1 shall not be construed to require Parent to undertake any efforts, or to take or consent or commit to any action if the impact of such efforts, action, consent or commitment would be reasonably expected, in the aggregate, to have a Seller Material Adverse Effect if the affected assets and/or operations had been Seller assets and/or operations (regardless of whether the assets or operations are or were, prior to the transaction, Parent’s assets or operations or Seller’s assets or operations). Neither Parent nor Seller shall be required to agree to or affect any divestiture, hold separate any business, or take any action that is not conditioned on the consummation of the transactions contemplated by this Agreement.
(c) Subject to and in furtherance of Section 7.1(a) above, Parent and Seller shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to applicable Laws relating to the exchange of information, all the information relating to Parent or Seller, as the case may be, and any of their respective subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental Authority in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Authorities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein.
(d) The Parent and the Seller shall promptly (i) advise each other of (and the Parent or the Seller shall so advise with respect to communications received by any Subsidiary or Affiliate of the Parent or the Seller, as the case may be) any written or oral communication from any Governmental Authority or third party whose consent or approval is required for consummation of the transactions contemplated by this Agreement; (ii) not participate in any substantive meeting or discussion with any Governmental Authority in respect of any filing, investigation, or inquiry concerning this Agreement or the transactions contemplated by this Agreement unless it consults with the other party in advance, and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend; (iii) furnish the other party with copies of all correspondences, filings, and written communications between them and their Subsidiaries and representatives, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Seller, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns. Neither the Parent nor Seller shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(e) The Seller agrees and acknowledges that, notwithstanding anything to the contrary in this Section 7.1, in connection with any filing or submission required, action to be taken or commitment to be made by the Seller, the Parent, or any of their respective subsidiaries to consummate the transactions contemplated by this Agreement, neither the Seller nor any of the Seller’s subsidiaries shall, without the Parent’s prior written consent, sell, divest, or dispose of any assets, commit to any sale, divestituredivestiture or disposal of businesses, dispositionproduct lines, prohibition or limitation assets of the Seller and the Seller’s subsidiaries or take any other action or commit to take any action that would limit the Seller’s, the Parent’s or any of a type described in Section 7.1(e)their respective subsidiaries’ freedom of action with respect to, or their ability to retain any of, their businesses, product lines or assets or Seller; provided that the foregoing shall not relieve any party of its obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
Third Party Consents and Regulatory Approvals. (a) Each The terms of Parent and Purchaser, on the one hand, and Seller, on Acquisition at the other hand, agrees promptly to correct any information provided by it for use date of publication of the Scheme Document shall be set out in the Offer Documents or in Rule 2.5 Announcement and the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities LawsScheme Document.
(b) Unless and until this Agreement is terminated in accordance with its terms, the Parties each agree to use their reasonable endeavours to achieve satisfaction of the Conditions as soon as reasonably practicable following the publication of the Scheme Document.
(c) Subject to the terms and conditions of this Agreementhereof, each of Parent, Purchaser IONA and Seller will Buyer shall use its commercially their reasonable efforts to endeavours to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby (including, without limitation, the Acquisition) as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority any Clearances required to be obtained or made by IONA or Buyer or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the Acquisition);
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Acquisition required under (A) the Exchange Act and any other applicable Laws federal or state securities laws, (B) the HSR Act and regulations any related governmental request thereunder, (C) the Takeover Rules and the Act, (D) the High Court, and (E) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by by, and to fully carry out the purposes of, this Agreement (including, without limitation, the Acquisition). IONA and Buyer shall cooperate with each other in connection with the making of the Offer and the Merger) as soon as practicable after the date hereofall such filings, including providing copies of all such documents to the non-filing Party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. IONA and Buyer shall furnish to each other, upon reasonable request, all information reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the rules and regulations of any applicable law (iincluding all information required to be included in the Scheme Document) preparing and filing, in consultation connection with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement Agreement. For the avoidance of doubt, Buyer and IONA agree that nothing contained in this Section 7.3(c) shall modify or affect their respective rights and responsibilities under Section 7.3(d). With respect to any documents or information required to be given by any Party to another Party pursuant to this Section 7.3(c), such first Party may give such documents or information to such second Party’s outside counsel, instead of directly to such second Party, if such first Party reasonably believes that doing so is required by, or advisable pursuant to, applicable law.
(iid) taking all Subject to the terms hereof, Buyer and IONA agree, and shall cause each of their respective Subsidiaries, to cooperate and to use their respective reasonable steps as may be necessary endeavours to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make any government clearances or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods approvals required for Closing under the HSR Act and any other Regulatory Law as soon as practicable federal, state or foreign law, regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”), and not extend agree to respond to any waiting period government requests for information under any Antitrust Law, and to contest and resist any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) (an “Antitrust Order”) that restricts, prevents or prohibits the consummation of the Acquisition or any other transactions contemplated by this Agreement under any Antitrust Law. The Parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other Party in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to any Antitrust Law. Buyer shall pay the filing fee for the filing to be made under the HSR Act Act.
(e) Each of IONA and Buyer shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, their reasonable endeavours to obtain any third party Clearances required on behalf of such Party or any of its Subsidiaries in connection with the Acquisition that are necessary to consummate the transactions contemplated hereby, it being understood that neither IONA nor Buyer shall be required to make any material payments, other Regulatory Law than filing or enter into any agreement with other fees payable to a Governmental Authority for seeking the relevant Clearance, in connection with the fulfillment of its obligations under this Section 7.3(e).
(f) Buyer and IONA shall (i) promptly advise each other of (and Buyer or IONA shall so advise with respect to communications received by any Subsidiary of Buyer or IONA, as the case may be) any written or oral communication from any Governmental Authority or third party whose consent or approval is required for consummation of the transactions contemplated by this Agreement; (ii) to the extent practicable, not participate in any substantive meeting or discussion with any Governmental Authority in respect of any filing, investigation, or inquiry concerning this Agreement or the transactions contemplated by this Agreement unless it consults with the other Party in advance, and, to consummate the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend; and (iii) promptly furnish the other Party with copies of all correspondence, filings, and written communications between them and their Subsidiaries and Representatives, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that materials may be redacted (x) to remove references concerning the valuation of the businesses of IONA or Buyer or their respective Affiliates, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns. Neither Buyer nor IONA shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Authority without prior consultation and the written consent of Parentthe other Party, which consent shall not be unreasonably withheld or delayed. If necessary With respect to obtain any regulatory approval notice, documentation or other communication required to be given by any Party to another Party pursuant to any Regulatory Lawthis Section 7.3(f), such first Party may give such notice, documentation or other communication to such second Party’s outside counsel, instead of directly to such second Party, if such first Party reasonably believes that doing so is required by, or if any administrative or judicial Actionadvisable pursuant to, including any Action applicable law.
(g) Each Party will promptly provide such information as may reasonably be requested by a Governmental Authority following any such filing or a private partynotification and shall negotiate with any Governmental Authority in relation to any undertakings, is instituted (orders, agreements or threatened commitments which any such Governmental Authority requires to facilitate the Acquisition, and shall use reasonable endeavours to cause such negotiations to be instituted)concluded in any event at least five (5) Business Days prior to December 15, challenging 2008 or such other date as is agreed between the Offer, Parties and (if required) consented to by the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser High Court and Seller shall cooperate with each other and use its commercially reasonable efforts to (xif required) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated hereinPanel.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(dh) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser nothing in this Agreement shall have an obligation under this Agreementrequire either IONA or the Guarantor, or any of their respective Subsidiaries, to, and, without Buyer’s prior written consent, none of IONA or any of its Subsidiaries shall: (i) agree to divest or to effect any divestiture of, or hold separate (including by establishing a trust or otherwise), or agree to divest (restrict its ownership or cause operation of, any business or assets of IONA or its subsidiaries) anything material to any Subsidiaries or of the Guarantor or its or their respective material businesses, material product lines or material assetsSubsidiaries, or to take enter into any settlement or consent decree, or agree to take any undertaking, with respect to any business or assets of IONA or its Subsidiaries or of the Guarantor or its Subsidiaries, (or cause any of its subsidiaries to take ii) enter into, amend or agree to take) any other action enter into or to agree (or cause any of its subsidiaries to agree) to amend, any material limitation contracts or agreements of IONA or its Subsidiaries or of the Guarantor or its Subsidiaries, (iii) otherwise waive, abandon or alter any material restriction on any rights or obligations of IONA or its Subsidiaries or their respective businesses, product lines of the Guarantor or assets; its Subsidiaries or (iiiv) to file or defend against any litigation brought lawsuit, appeal any judgment or contest any injunction issued in a proceeding initiated by any a Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel onlyAuthority.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 2 contracts
Sources: Implementation Agreement (Iona Technologies PLC), Implementation Agreement (Progress Software Corp /Ma)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller the parties hereto will use its commercially 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 this Agreement and applicable Laws and regulations Law to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) Merger as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents filings and to obtain as promptly as reasonably practicable all consents, clearances, waivers, licenses, ordersOrders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary necessary, proper or advisable to obtain all such material consents, clearances, waivers, licenses, Orders, registrations, permitsapprovals, permits and authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees (A) to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof but in any event no later than seven (7) days after the date hereof, (iy) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (iiz) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and hereby, (B) to respond to any inquiries received and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and (C) to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without except with the prior consultation and the written consent of Parent, which consent shall the other party (not to be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(cb) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller the parties hereto shall, in connection with the efforts referenced in Section 7.1(b6.3(a) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.3 as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Parent shall pay any and all filing fees in connection with any filings made under this Section 6.3.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any Regulatory Law or if any Action, whether judicial or administrative, is instituted (or threatened to be instituted) by any Governmental Authority or any private party challenging any of the transactions contemplated hereby as violative of any Regulatory Law, each of the parties hereto shall use its reasonable best efforts to: (i) oppose or defend against any Action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein); and/or (ii) take such action as reasonably necessary to overturn any action by any Government Authority or private party to block consummation of this Agreement (and the transactions contemplated herein), including by defending any Action brought by any Governmental Authority or private party in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any decree, judgment, injunction or other Order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein, or in order to resolve any such objections or challenge as such Governmental Authority or private party may have to such transactions under such Regulatory Law so as to permit consummation of the transactions contemplated by this Agreement.
(d) Notwithstanding anything the foregoing, nothing in this Section 6.3 or otherwise in this Agreement shall require or be deemed to the contrary require Parent or any of its Subsidiaries to agree to or take any action that constitutes or would result in any Burdensome Condition. For purposes of this Agreement, neither Parent nor Purchaser a “Burdensome Condition” shall have an obligation under this Agreement: mean executing or carrying out agreements, submitting to Orders (including consent decrees) or taking any other action (i) to divest providing for the license, sale or agree to divest other disposition or holding separate (through the establishment of trust or cause otherwise) of any assets or business or categories of its subsidiaries) anything material to any assets or businesses of its the Company, Parent or their respective material businessesSubsidiaries or the holding separate of the capital stock of a Subsidiary of Parent (including the Surviving Corporation and its Subsidiaries) or the Company, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) imposing or seeking to defend against impose any litigation brought by limitation on the ability of the Company, Parent or any Governmental Authority relating of their respective Subsidiaries to conduct their respective businesses (including with respect to market practices and structure) or own such assets or to acquire, hold or exercise full rights of ownership of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent business of Parent, publicly the Company or before any Governmental Authority their Subsidiaries that, in the case of (i) and (ii), individually or other third partyin the aggregate, offerwould or would reasonably be expected to be materially adverse to the business, suggestassets, propose liabilities, financial condition, operations or negotiateresults of operations (with materiality, for purposes of this provision, being measured in relation to the business, assets, liabilities, financial condition, operations and shall not commit to results of operations of the Company and its Subsidiaries taken as a whole) of the Company and its Subsidiaries, taken as a whole, or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e)Parent.
Appears in 2 contracts
Sources: Merger Agreement (Clearwater Paper Corp), Merger Agreement (Cellu Tissue Holdings, Inc.)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms hereof and conditions of this Agreementapplicable Law, each of Parent, Purchaser Seller and Seller will Buyer shall use its commercially their reasonable best efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable under to consummate and make effective the transactions contemplated hereby (including, without limitation, the Merger and the Upstream Merger) as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by Seller or Buyer or any of their respective Subsidiaries in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the Merger and the Upstream Merger);
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger and the Upstream Merger required under (A) the Exchange Act and any other applicable Laws federal or state securities laws, (B) the HSR Act and regulations any related governmental request thereunder, and (C) any other applicable Law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by by, and to fully carry out the purposes of, this Agreement (including, without limitation, each of the Offer Merger and the Upstream Merger) as soon as practicable after ). Seller and Buyer shall cooperate with each other in connection with the date hereofmaking of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, accepting reasonable additions, deletions or changes suggested in connection therewith. Seller and Buyer shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (iincluding all information required to be included in the Registration Statement and Proxy Statement/Prospectus) preparing and filing, in consultation connection with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement Agreement. For the avoidance of doubt, Buyer and Seller agree that nothing contained in this Section 6.3(a) shall modify or affect their respective rights and responsibilities under Section 6.3(b).
(iib) taking all Seller and Buyer shall use reasonable steps as may be necessary best efforts to obtain all such material consents, clearances, waivers, licenses, registrations, permits, the authorizations, Tax rulingsconsents, orders and approvals. In furtherance approvals and not in limitation of the foregoing, each party hereto agrees to make filings from or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation Authority or other Regulatory Law with respect to third party necessary for their execution and delivery of, and the transactions contemplated hereby performance of their respective obligations pursuant to, this Agreement. The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and to shall promptly respond to any inquiries received and supply as promptly as practicable any requests for additional information from any Governmental Authority. Each of Seller and documentary material that may be requested pursuant Buyer hereby covenants and agrees to the HSR Act and any other Regulatory Law and use its reasonable best efforts to take all other actions reasonably necessary to cause the expiration or secure termination of the applicable any waiting periods under the HSR Act and any other Regulatory federal, state or foreign law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”) and to obtain the approval of the Federal Trade Commission, the Antitrust Division of the United States Department of Justice or any other applicable Governmental Authority, for the Merger, the Upstream Merger and the other transactions contemplated hereby. Notwithstanding the foregoing, nothing herein shall require Buyer or Seller, in connection with the receipt of any regulatory approval, to divest, sell, lease, license, hold separate, restrict or otherwise dispose of, or agree to divest, sell, lease, license, hold separate, restrict or otherwise dispose of any business whatsoever conducted by or proposed to be conducted by or any assets whatsoever of Buyer, Seller or any of their respective Subsidiaries, or to litigate or formally contest any proceedings relating to any regulatory approval process in connection with the Merger or Upstream Merger.
(c) Buyer and Seller will (i) promptly notify the other party of any written or oral communication to that party or its Affiliates from any Governmental Authority and, subject to applicable Law as soon as practicable (including Regulations, codes, plans, Orders and not extend charges thereunder), permit the other party to review in advance any waiting period proposed written communication to any Governmental Authority, in each case concerning the review, clearance or approval of any of the transactions contemplated hereby under the HSR Act or any other Regulatory Law similar applicable foreign Laws; (ii) not agree to participate, or enter into to permit its Affiliates to participate, in any agreement substantive meeting or discussion with a any Governmental Authority not to consummate in respect of any filings, investigation or inquiry concerning the review, clearance or approval of any of the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement hereby under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects similar applicable foreign Laws unless it consults with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received in advance and, to the extent permitted by such party fromGovernmental Authority, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give gives the other party or its counsel the opportunity to attend and participate in such meetings meeting; provided that if the Governmental Authority or applicable Law (including Regulations, codes, plans, Orders and conferences charges thereunder) does not permit such participation by the other party or its counsel, or if Buyer’s and Seller’s respective counsels both agree in good faith that participation of Seller or Seller’s counsel would not be advisable, Buyer meeting with such Governmental Authority may proceed without the participation of Seller or its counsel; and (iii) furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) drafted by or in conjunction with outside counsel between it and its Affiliates and its respective Representatives on the one hand, and any Governmental Authority or members of such Governmental Authority’s staff on the other hand, concerning the review, clearance or approval of any of the transactions contemplated hereby under the HSR Act or any similar applicable foreign Law, except to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law (including Regulations, codes, plans, Orders and charges thereunder) or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing instructions of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any such Governmental Authority.
(d) Notwithstanding anything Buyer and Seller shall furnish to each other all information required for any application or other filing under the contrary rules and regulations of any applicable Law in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything Buyer shall pay the filing and related fees in this Agreement connection with any such filings that must be paid to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority Authorities by any of the parties.
(f) Each of Seller and Buyer shall give (or other shall cause their respective Subsidiaries to give) any notices to third party, offer, suggest, propose or negotiateparties, and shall not commit use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain any third party consents required in connection with the Merger and the Upstream Merger that are (i) necessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in the Seller Disclosure Schedule or the Buyer Disclosure Schedule, as the case may be, or (iii) required to prevent the occurrence of an event that is reasonably likely to have a Seller Material Adverse Effect or a Buyer Material Adverse Effect prior to or effectafter the Effective Time, by consent decree, hold separate order or otherwise, it being understood that neither Seller nor Buyer shall be required to make any sale, divestiture, disposition, prohibition or limitation or other action payments in connection with the fulfillment of a type described in its obligations under this Section 7.1(e)6.3.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Third Party Consents and Regulatory Approvals. (a) Each of Parent The parties hereto shall cooperate with each other and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller will use its commercially reasonable best efforts to takepromptly (i) prepare and file all necessary documentation, or cause to be takeneffect all applications, notices, petitions and filings as soon as reasonably practicable, to obtain as promptly as reasonably practicable all actions permits, consents, approvals, authorizations and to do, or cause to be done, clearances (including under the HSR Act and the Antitrust Laws) of all things necessary, proper or advisable under this Agreement Specified Governmental Authorities and applicable Laws and regulations other Persons which are necessary to consummate the transactions contemplated by this Agreement (including, without limitation, including each of the Offer and the Merger) as soon as practicable after the date hereof), including (i) preparing and filing, in consultation to comply with the other party terms and as promptly as practicable and advisable after the date hereofconditions of all such permits, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permitsauthorizations and clearances of all such third parties and Specified Governmental Authorities, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and including landlord consents (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of without limiting the foregoing, each party hereto agrees to make make, or cause to be made, the applications and filings required to be made under the HSR Act and the Antitrust Laws as promptly as practicable, and in consultation any event within ten (10) Business Days after the date hereof; and cooperation with (iii) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the other consummation of the transactions contemplated by this Agreement. Other than pursuant to actions by the Company or Company Board permitted in Section 7.2(e), the parties further agree to use reasonable best efforts to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including taking all such further action as reasonably may be necessary to (i) cause the expiration of the notice periods under the HSR Act and the Antitrust Laws as promptly as reasonable practicable after the date of this Agreement, (ii) to comply as promptly as practicable and advisable after with any request for additional information, documents or other materials received by Parent, Purchaser or the date hereofCompany, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (iiiii) all other necessary registrationsto resolve such objections, declarationsif any, notices and filings relating to as the Offer United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or Merger with other Governmental Authorities under competition authorities of any other antitrust, competition, trade regulation nation or other jurisdiction or any other Person may assert under Regulatory Law with respect to the transactions contemplated hereby by this Agreement and (iv) to respond to avoid or eliminate each and every impediment under any inquiries received and supply as promptly as practicable any additional information and documentary material Law that may be requested pursuant to the HSR Act and asserted by any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not with respect to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under so as to enable the HSR Act Closing to occur as soon as expeditiously possible. The parties agree that the use of “reasonable best efforts” by Parent shall not require Parent or any other Regulatory LawPurchaser to propose, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action either of the following (each a type described in Section 7.1(e“Burdensome Action”).
Appears in 1 contract
Sources: Merger Agreement (Adobe Systems Inc)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms hereof and conditions of this Agreementapplicable law, each of Parent, Purchaser and Seller will Constituent Company shall use its commercially their reasonable best efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable under to consummate and make effective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by such Constituent Companies or any of their respective subsidiaries in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary filings for such Constituent Company, and thereafter make any other required submissions for such Constituent Company, with respect to this Agreement required under (A) the Securities Act, the Exchange Act and any other applicable Laws federal or state securities laws, and regulations (B) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by by, and to fully carry out the purposes of, this Agreement Agreement.
(including, without limitation, b) The Constituent Companies shall cooperate with each other in connection with the making of the Offer and the Merger) as soon as practicable after the date hereofall such filings, including (i) preparing providing copies of all such documents to the non-filing parties and filingtheir advisors prior to filing and, if requested, accepting reasonable additions, deletions or changes suggested in consultation with the connection therewith. The Constituent Companies shall use their respective reasonable best efforts to furnish to each other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and information required for any application or other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary filing to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form made pursuant to the HSR Act rules and regulations of any applicable law (iiincluding all information required to be included in the Registration Statement and Information Statement) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger in connection with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the Each Constituent Company shall use its reasonable best efforts referenced in Section 7.1(b) to obtain all requisite approvalsthe respective authorizations, clearances consents, orders and authorizations for the transactions contemplated by this Agreement under the HSR Act approvals and to make filings from or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiateparty necessary for its respective execution and delivery of, and the performance of its respective obligations pursuant to, this Agreement. The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and shall not commit promptly respond to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e)requests for additional information from any Governmental Authority.
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms hereof, during the Pre-Closing Period, Seller and conditions of this Agreement, each of Parent, Purchaser and Seller will Buyer shall use its commercially their reasonable best efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable under to consummate and make effective the transactions contemplated hereby (including, without limitation, the Merger) as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by Seller or Buyer or any of their respective Subsidiaries in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the Merger);
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Exchange Act and any other applicable Laws federal or state securities laws, (B) the HSR Act and regulations any related governmental request thereunder, and (C) any other applicable Law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by by, and to fully carry out the purposes of, this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after ). Seller and Buyer shall cooperate with each other in connection with the date hereofmaking of all such filings, including (i) preparing providing copies of all such documents to the non-filing party and filingits advisors prior to filing and, if requested, accepting reasonable additions, deletions or changes suggested in consultation connection therewith. Seller and Buyer shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement Agreement. For the avoidance of doubt, Buyer and Seller agree that nothing contained in this Section 6.3(a) shall modify or affect their respective rights and responsibilities under Section 6.2(b).
(iib) taking all During the Pre-Closing Period, Seller and Buyer shall use reasonable steps as may be necessary best efforts to obtain all such material consents, clearances, waivers, licenses, registrations, permits, the authorizations, Tax rulingsconsents, orders and approvals. In furtherance approvals and not in limitation of the foregoing, each party hereto agrees to make filings from or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation Authority or other Regulatory Law with respect to third party necessary for their execution and delivery of, and the transactions contemplated hereby performance of their respective obligations pursuant to, this Agreement. The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and to shall promptly respond to any inquiries received and supply as promptly as practicable any requests for additional information from any Governmental Authority. Each of Seller and documentary material that may be requested pursuant Buyer hereby covenants and agrees to the HSR Act and any other Regulatory Law and use its reasonable best efforts to take all other actions reasonably necessary to cause the expiration or secure termination of the applicable any waiting periods under the HSR Act and any other Regulatory federal, state or foreign law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”) and to obtain the approval of the Federal Trade Commission, the Antitrust Division of the United States Department of Justice or any other applicable Governmental Authority, for the Merger and the other transactions contemplated hereby. Notwithstanding the foregoing, nothing herein shall require Buyer or Seller, in connection with the receipt of any regulatory approval, to divest, sell, lease, license, hold separate, restrict or otherwise dispose of, or agree to divest, sell, lease, license, hold separate, restrict or otherwise dispose of any business whatsoever conducted by or proposed to be conducted by or any assets whatsoever of Buyer, Seller or any of their respective Subsidiaries, or to litigate or formally contest any proceedings relating to any regulatory approval process in connection with the Merger.
(c) During the Pre-Closing Period, Buyer and Seller will (i) promptly notify the other party of any written or oral communication to that party or its Affiliates from any Governmental Authority and, subject to applicable Law as soon as practicable (including Regulations, codes, plans, Orders and not extend charges thereunder), permit the other party to review in advance any waiting period proposed written communication to any Governmental Authority, in each case concerning the review, clearance or approval of any of the transactions contemplated hereby under the HSR Act or any other Regulatory Law similar applicable foreign Laws; (ii) not agree to participate, or enter into to permit its Affiliates to participate, in any agreement substantive meeting or discussion with a any Governmental Authority not to consummate in respect of any filings, investigation or inquiry concerning the review, clearance or approval of any of the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement hereby under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects similar applicable foreign Laws unless it consults with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received in advance and, to the extent permitted by such party fromGovernmental Authority, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give gives the other party or its counsel the opportunity to attend and participate in such meetings meeting; provided that if the Governmental Authority or applicable Law (including Regulations, codes, plans, Orders and conferences charges thereunder) does not permit such participation by the other party or its counsel, or if Buyer’s and Seller’s respective counsels both agree in good faith that participation of Seller or Seller’s counsel would not be advisable, Buyer meeting with such Governmental Authority may proceed without the participation of Seller or its counsel; and (iii) furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) drafted by or in conjunction with outside counsel between it and its Affiliates and its respective Representatives on the one hand, and any Governmental Authority or members of such Governmental Authority’s staff on the other hand, concerning the review, clearance or approval of any of the transactions contemplated hereby under the HSR Act or any similar applicable foreign Law, except to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law (including Regulations, codes, plans, Orders and charges thereunder) or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing instructions of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any such Governmental Authority.
(d) Notwithstanding anything During the Pre-Closing Period, Buyer and Seller shall furnish to each other all information required for any application or other filing under the contrary rules and regulations of any applicable Law in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything Buyer shall pay all filing and related fees in this Agreement connection with any such filings that must be paid to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority Authorities by any of the parties.
(f) During the Pre-Closing Period, each of Seller and Buyer shall give (or other shall cause their respective Subsidiaries to give) any notices to third party, offer, suggest, propose or negotiateparties, and shall not commit use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain any third party consents required in connection with the Merger that are (i) necessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in the Seller Disclosure Schedule or the Buyer Disclosure Schedule, as the case may be, or (iii) required to prevent the occurrence of an event that is reasonably likely to have a Seller Material Adverse Effect prior to or effectafter the Effective Time, by consent decree, hold separate order or otherwise, it being understood that neither Seller nor Buyer shall be required to make any sale, divestiture, disposition, prohibition or limitation or other action payments in connection with the fulfillment of a type described in its obligations under this Section 7.1(e)6.3.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller will use its commercially reasonable 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 this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all material consents, clearances, waivers, licenses, ordersOrders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders Orders and approvalsapprovals (provided that in no event shall Seller or any of the Seller Subsidiaries be required to pay before the Effective Time any fee, penalty or other consideration to any third party for any consents or approvals required under any contract for the consummation of the transactions contemplated by this Agreement). In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, ,
(i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without Agreement except with the prior consultation and the written consent of Parentthe other party, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding Proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “"DOJ”"), the Federal Trade Commission (the “"FTC”") or any other Governmental Authority and of any material communication received or given in connection with any proceeding Proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s 's legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding Proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary foregoing, nothing in this AgreementAgreement shall require Parent to propose, neither negotiate, offer to commit or effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material Subsidiaries, or effective as of the Effective Time, such assets or businesses of Seller or the Seller Subsidiaries, or otherwise offer to take or offer to commit to take any action (including any action that limits its freedom of action, ownership or control with respect to, or its ability to retain or hold, any of the businesses, assets, product lines, properties or services of Parent, any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d)Subsidiaries, the Parties reserve the right to limit disclosure Surviving Corporation or its Subsidiaries) which it is lawfully capable of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.taking;
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e7.1(d).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent Subject to the terms and Purchaserconditions hereof, on the one handSeller and Buyer shall use their reasonable best efforts to:
(i) take, or cause to be taken, all actions, and Sellerdo, on or cause to be done, and to assist and cooperate with the other handparty in doing, agrees all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to correct be obtained or made by Seller or Buyer or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement under (A) the Exchange Act and any other applicable federal or state securities laws and (B) any other applicable Law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Seller and Buyer shall cooperate with each other in connection with the making of all such filings, including, without limitation, providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Seller and Buyer shall use their respective reasonable best efforts to furnish to each other, upon reasonable request, all information provided by it for use reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Offer Documents or Proxy Statement) in connection with the Schedule 14D-9 if and to transactions contemplated by this Agreement. For the extent that such information shall have become false or misleading in any material respect and each avoidance of Parentdoubt, Purchaser Buyer and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents agree that nothing contained in this Section 6.3(a) shall modify or the Schedule 14D-9 as so corrected to be filed with the SEC affect their respective rights and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Lawsresponsibilities under Section 6.3(b).
(b) Subject to the terms hereof, Buyer and conditions of this AgreementSeller agree, and shall cause each of Parenttheir respective Subsidiaries, Purchaser to cooperate and Seller will to use its commercially their respective reasonable best efforts to take, obtain any government clearances or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities approvals required for Closing under any other antitrustfederal, competitionstate or foreign law, trade regulation or other Regulatory Law with respect decree designed to prohibit, restrict or regulate actions for the transactions contemplated hereby and purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”), to respond to any inquiries received and supply as promptly as practicable government requests for information under any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law Antitrust Law, and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Actionaction, including any legislative, administrative or (z) avoid the entry of or judicial action, and to have vacated or terminatedvacated, lifted, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary or permanent) (an “Antitrust Order”) that would restrainrestricts, prevent prevents or delay prohibits the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each consummation of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under any Antitrust Law. The parties hereto will consult and cooperate with one another, and consider in good faith the HSR Act views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any other Regulatory party hereto in connection with proceedings under or relating to any Antitrust Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other . Buyer and Seller shall equally share the cost of any filing and related fees in connection with any filing such filings that must be made by any of the parties under the Antitrust Laws.
(c) Each of Seller and Buyer shall give (or submission shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain any third party consents required in connection with any investigation or other inquiry, including any proceeding initiated the transactions contemplated by a private party, this Agreement that are (iii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of necessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in the Seller Disclosure Schedule or the Buyer Disclosure Schedule, as the case may be, or (iii) permit required to prevent the other partyoccurrence of an event that is reasonably likely to have a Business Material Adverse Effect or a Buyer Material Adverse Effect prior to or after the Closing, or the other party’s legal counsel, it being understood that neither Seller nor Buyer shall be required to review make any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, payments in connection with the fulfillment of its obligations under this Section 6.3; provided, however, in the event any proceeding such payment is required, the parties shall promptly discuss such payment requirement and work together in good faith to obtain the consent.
(d) Subject to applicable Law and as required by a private partyany Governmental Authority, Seller and Buyer shall each keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Section 6.3, including promptly furnishing the other with copies of notices or other material communications received by Buyer or Seller, as the case may be, or any of its Subsidiaries, from any third party and/or Governmental Authority with respect to the transactions contemplated hereby. Neither Seller nor Buyer shall permit any Representative to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other Personinquiry unless it consults with the other party in advance and, (iv) give to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authoritythereat.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent Subject to the terms and Purchaserconditions hereof, on the one handSeller and Buyer shall use their commercially reasonable efforts to:
(i) take, or cause to be taken, all actions, and Sellerdo, on or cause to be done, and to assist and cooperate with the other handparties in doing, agrees all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby (including, without limitation, the Merger) as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to correct be obtained or made by Seller or Buyer or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the Merger);
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Exchange Act and any other applicable federal or state securities Laws, (B) the HSR Act and any related governmental request thereunder, and (C) any other applicable Law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement (including, without limitation, the Merger). Seller and Buyer shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Seller and Buyer shall use their respective commercially reasonable efforts to furnish to each other, upon reasonable request, all information provided by it for use reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Offer Documents or Proxy Statement) in connection with the Schedule 14D-9 if transactions contemplated by this Agreement. As promptly as practicable after the date of this Agreement (and in any event within fifteen (15) Business Days), Buyer and Merger Sub shall furnish, and shall cause their respective Affiliates to furnish, all information required by Law to be included in applications required to be made by Seller in connection with the Material Servicing Permits, which may include but may not be limited to the extent that such information shall have become false or misleading in any material respect and each set forth on Section 6.3(a) of Parentthe Seller Disclosure Letter. For the avoidance of doubt, Purchaser Buyer and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents agree that nothing contained in this Section 6.3(a) shall modify or the Schedule 14D-9 as so corrected to be filed with the SEC affect their respective rights and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Lawsresponsibilities under Section 6.3(b).
(b) Subject to the terms hereof, Buyer and conditions of this AgreementSeller agree, and shall cause each of Parenttheir respective Subsidiaries, Purchaser to cooperate and Seller will to use its their respective commercially reasonable efforts to take, obtain any government clearances or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable approvals required for Closing under this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act Act, as amended, and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrustfederal, competitionstate or foreign Law, trade regulation or other Regulatory Law with respect decree designed to prohibit, restrict or regulate actions for the transactions contemplated hereby and purpose or effect of monopolization or restraint of trade (collectively, "Antitrust Laws"), to respond to any inquiries received and supply as promptly as practicable government requests for information under any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law Antitrust Law, and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Actionaction, including any legislative, administrative or (z) avoid the entry of or judicial action, and to have vacated or terminatedvacated, lifted, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary or permanent) (an "Antitrust Order") that would restrainrestricts, prevent prevents or delay prohibits the Closing consummation of the Merger or the any other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under any Antitrust Law. The parties hereto will consult and cooperate with one another, and consider in good faith the HSR Act views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any other Regulatory party hereto in connection with proceedings under or relating to any Antitrust Law. Buyer shall pay all filing and related fees in connection with any such filings that must be made by any of the parties under the Antitrust Laws.
(c) Each of Seller and Buyer shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, use its and use, and cause their respective Subsidiaries to use, their commercially reasonable efforts to obtain any third party consents required in connection with the Merger that are (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of necessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in the Seller Disclosure Letter or the Buyer Disclosure Letter, as the case may be, or (iii) permit required to prevent the other partyoccurrence of an event that is reasonably likely to have a Seller Material Adverse Effect or a Buyer Material Adverse Effect prior to or after the Effective Time, or the other party’s legal counsel, it being understood that neither Seller nor Buyer shall be required to review make any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, payments in connection with the fulfillment of its obligations under this Section 6.3(c).
(d) Subject to applicable Law and as required by any proceeding Governmental Authority, Seller and Buyer each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated by a private partythis Section 6.3, including promptly furnishing the other with copies of notices or other material communications received by Buyer or Seller, as the case may be, or any of its Subsidiaries, from any third party and/or Governmental Authority with respect to the Merger and the other transactions contemplated hereby. Neither Seller nor Buyer shall permit any of its officers or any other representatives or agents to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other Personinquiry unless it consults with the other party in advance and, (iv) give to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authoritythereat.
(de) Notwithstanding anything to the contrary Nothing in this AgreementAgreement shall obligate Buyer, neither Parent nor Purchaser shall have an obligation under this Agreement: Merger Sub or any of their respective Affiliates to agree (i) to divest limit in any material respect or agree not to divest exercise any rights of ownership of any securities (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assetsincluding Seller Common Stock), or to take divest, dispose of or agree to take (hold separate any securities or cause any all or a portion of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines assets or assets; properties or of the business, assets or properties of Seller or any of its Subsidiaries or (ii) to defend against limit in any litigation brought by any Governmental Authority relating material respect the ability of such entities (A) to conduct their respective businesses or own such assets or properties or to conduct the transactions contemplated by this Agreement. Notwithstanding anything businesses or own the properties or assets of Seller and its Subsidiaries or (B) to control their respective businesses or operations or the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure businesses or operations of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel onlySeller and its Subsidiaries.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreementhereof, each of ParentSeller, Purchaser its Subsidiaries and Seller will Buyer shall use its commercially their reasonable best efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by Seller or Buyer in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other submissions, in each case as required of such party by applicable Laws law, with respect to this Agreement under (A) the Exchange Act and any other applicable federal or state securities laws, and (B) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Seller, its Subsidiaries and Buyer shall cooperate with each other in connection with the making of all such filings, including, without limitation, if requested by the other party, providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Seller and Buyer shall use their respective reasonable best efforts to furnish to each other, upon reasonable request, all information reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the rules and regulations of any applicable law in connection with the transactions contemplated by this Agreement. For the avoidance of doubt, Seller, its Subsidiaries and Buyer agree that nothing contained in this Section 5.3(a) shall modify or affect their respective rights and responsibilities under Section 5.3(b).
(b) Subject to consummate Section 2.10, Seller and its Subsidiaries shall use reasonable best efforts to obtain, all consents that are required under the Purchased Contracts in connection with the consummation of the transactions contemplated by this Agreement so as to preserve all rights of, and benefits to, Buyer thereunder, and Buyer shall provide commercially reasonable cooperation to Seller to obtain such consents; provided, that no Purchased Contract shall be amended and no right thereunder shall be waived to obtain any such consent, in each case without the prior written consent of Buyer.
(includingc) Subject to applicable law and as required by any Governmental Authority, without limitation, Seller and Buyer each shall keep the other apprised of the Offer and status of matters relating to completion of the Merger) as soon as practicable after the date hereoftransactions contemplated by this Section 5.3, including (i) preparing and filing, in consultation with promptly furnishing the other party and with copies of notices or other material communications received by Buyer or Seller, as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to case may be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and hereby. Neither Seller nor Buyer shall permit any Representative to respond to participate in any inquiries received and supply as promptly as practicable meeting with any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative in respect of any Regulatory Lawfilings, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform inquiry unless it consults with the other party of any communication received in advance and, to the extent permitted by such party fromGovernmental Authority, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give gives the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authoritythereat.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller will use its commercially reasonable 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 this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. .
(c) In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable (but in no event later than five (5) Business Days after the date hereof), (i) each party hereto undertakes and agrees to file or cause to be filed any necessary filing of a Notification and Report Form pursuant to the HSR Act Act, and (ii) all other necessary registrations, declarations, notices make such filings and filings relating to the Offer or Merger with other Governmental Authorities apply for such approvals and consents as are required under any other antitrust, competition, trade regulation or other Regulatory Law applicable Antitrust Laws with respect to the transactions contemplated hereby and hereby.
(d) Subject to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory applicable Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and except as prohibited by any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative representative of any Regulatory Lawapplicable Antitrust Authority, each of Parent, Purchaser and Seller shall Seller, acting through outside counsel, agree to coordinate and cooperate with each other fully and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects promptly with each other in connection with any filing or submission exchanging information and providing assistance as the other party may reasonably request in connection with any filing, submission, investigation or other inquiryinquiry related to the transactions contemplated herein, including any proceeding initiated by a private party. Each of Parent, Purchaser and Seller shall (i) use its commercially reasonable efforts to respond as promptly as reasonably practicable to any inquiries received from, and requests for additional information and documentary material by, any Antitrust Authority, (ii) promptly inform notify the other party of any written or oral communication received by such to that party fromfrom any Antitrust Authority, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit provide to the other party, or and permit the other party’s legal counsel, party to review any communication given by it to, and consult with each other comment in advance of any meeting or conference withsubmission, the DOJall proposed correspondence, the FTC or any such other Governmental Authority orfilings, in connection and written communications with any proceeding by a private party, Antitrust Authority with any other Personrespect to this Agreement and the transactions contemplated thereby, (iv) give not participate in any substantive meeting or discussion with any Antitrust Authority in respect of any filings, investigation or inquiry concerning this Agreement and the transactions contemplated hereby unless it consults with the other party in advance and, except as prohibited by applicable Law or Antitrust Authority, gives the other party the opportunity to attend and participate in such meetings thereat, and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Antitrust Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel onlythereto.
(e) Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be deemed to require Parent or Purchaser to 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 Parent or any of its Subsidiaries, or effective as of the Effective Time, Seller or its Subsidiaries, or otherwise offer to take or offer to commit to take any action (including any action that limits its freedom of action, ownership or control with respect to, or its ability to retain or hold, any of the businesses, assets, product lines, properties or services of Parent, any of its Subsidiaries, the Surviving Corporation or its Subsidiaries) which it is lawfully capable of taking and if the offer is accepted, take or commit to take such action, in each case, as may be required in order to avoid the commencement of any Action to prohibit the Offer, the Merger or any other transaction contemplated by this Agreement, or if already commenced, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action. Seller shall not, without the prior written consent of Parent, publicly or before any Governmental Antitrust Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e)this subparagraph.
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreementhereof, each of Parent, Purchaser and Seller will the parties shall use its their commercially reasonable efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated herein as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Body or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by any Seller Party or Buyer Party or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated herein;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement under (A) the Exchange Act and any other applicable Laws federal or state securities laws, (B) the HSR Act and regulations any related governmental request thereunder, and (C) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated in, and to fully carry out the purposes of, this Agreement. The Seller Parties and Buyer shall cooperate in connection with the making of all such filings, including providing copies of all such documents to the non-filing Party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Seller, Seller Owner and Buyer shall use their respective commercially reasonable best efforts to furnish the other Party, upon reasonable request, all information reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the applicable Rules in connection with the transactions contemplated in this Agreement. For the avoidance of doubt, Buyer and Seller agree that nothing contained in this Section 6.2(a) shall modify or affect their respective rights and responsibilities under Section 2.8(f) or Section 2.8(g).
(b) Subject to applicable law and as required by this Agreement (including, without limitationany Governmental Body, each Party shall keep the others apprised of the Offer and status of matters relating to completion of the Merger) as soon as practicable after the date hereoftransactions contemplated in this Section 6.2, including (i) preparing and filing, in consultation with promptly furnishing the other party and with copies of notices or other material communications received by such Party, as promptly as practicable and advisable after the date hereofcase may be, all documentation to effect all necessary applicationsor any of its Subsidiaries, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any or Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law Body with respect to the transactions contemplated hereby and herein. Neither Seller nor Buyer shall permit any of their representatives to respond to participate in any inquiries received and supply as promptly as practicable meeting with any additional information and documentary material that may be requested pursuant Governmental Body in respect of any filing, investigation or other inquiry unless it consults with the other Party in advance and, to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a extent permitted by such Governmental Authority not to consummate the transactions contemplated by this AgreementBody, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or gives the other transactions contemplated hereinParty the opportunity to attend and participate.
(c) To the extent permissible under applicable LawExcept as otherwise provided in Section 12.3 or Section 2.8, each Party’s cost and expense of Parent, Purchaser and Seller shall, in connection compliance with the efforts referenced in this Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or 6.3 shall be borne by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental AuthorityParty incurring such expense.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreementhereof, each of Parent, Purchaser Seller and Seller will Buyer shall use its commercially their reasonable best efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by Seller or Buyer in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other submissions, in each case as required of such party by applicable Laws law, with respect to this Agreement under (A) the Exchange Act and any other applicable federal or state securities laws, and (B) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Seller and Buyer shall cooperate with each other in connection with the making of all such filings, including, without limitation, if requested by the other party, providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Seller and Buyer shall use their respective reasonable best efforts to furnish to each other, upon reasonable request, all information reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the rules and regulations of any applicable law in connection with the transactions contemplated by this Agreement. For the avoidance of doubt, Buyer and Seller agree that nothing contained in this Section 5.3(a) shall modify or affect their respective rights and responsibilities under Section 5.3(b).
(b) Each of Seller and Buyer shall give any notices to consummate third parties, and use their reasonable best efforts to obtain any third party consents required in connection with the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including that are (i) preparing and filingnecessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in consultation the Seller Disclosure Schedule or the Buyer Disclosure Schedule, as the case may be, or (iii) required to prevent the occurrence of an event that is reasonably likely to have a Business Material Adverse Effect or a Buyer Material Adverse Effect prior to or after the Closing, it being understood that neither Seller nor Buyer shall be required to make any payments in connection with the other party fulfillment of its obligations under this Section 5.3.
(c) Subject to applicable law and as required by any Governmental Authority, Seller and Buyer each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Section 5.3, including promptly furnishing the other with copies of notices or other material communications received by Buyer or Seller, as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to case may be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and hereby. Neither Seller nor Buyer shall permit any Representative to respond to participate in any inquiries received and supply as promptly as practicable meeting with any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative in respect of any Regulatory Lawfilings, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform inquiry unless it consults with the other party of any communication received in advance and, to the extent permitted by such party fromGovernmental Authority, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give gives the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authoritythereat.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent Subject to the terms and Purchaserconditions hereof, on the one handCompany shall use its reasonable best efforts and Buyer shall use its commercially reasonable efforts to, and Sellerthe Company shall cause Seller Subsidiaries to use their reasonable best efforts to:
(i) take, on or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other handparties in doing, agrees all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Body or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to correct be obtained or made by the Company or Buyer or any information provided by it for use of their respective Subsidiaries in connection with the Offer Documents authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement under (A) the Exchange Act and any other applicable federal or in state securities laws, (B) the Schedule 14D-9 if HSR Act and any related governmental request thereunder, and (C) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the extent that purposes of, this Agreement. The Company and Buyer shall cooperate with each other in connection with the making of all such filings, including, without limitation, providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. The Company and Buyer shall use their respective reasonable best efforts to furnish to each other, upon reasonable request, all information shall have become false reasonably necessary or misleading advisable in connection with any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents application or the Schedule 14D-9 as so corrected other filing to be filed made pursuant to the rules and regulations of any applicable law in connection with the SEC transactions contemplated by this Agreement. For the avoidance of doubt, Buyer and to be disseminated to the Seller Stockholders, Company agree that nothing contained in each case, as this Section 6.3(a) shall modify or affect their respective rights and to the extent required by applicable federal securities Lawsresponsibilities under Section 6.3(b) or Section 2.7(g).
(b) Subject to the terms hereof, Buyer and conditions of this Agreementthe Company agree, and shall cause each of Parenttheir respective Subsidiaries, Purchaser to cooperate and Seller will to use its commercially their respective reasonable best efforts to take, obtain any government clearances or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable approvals required for Closing under this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act Act, as amended, and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrustfederal, competitionstate or foreign law, trade regulation or other Regulatory Law with respect decree designed to prohibit, restrict or regulate actions for the transactions contemplated hereby purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”), and to respond to any inquiries received and supply as promptly as practicable government requests for information under any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law Antitrust Law, and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Actionaction, including any legislative, administrative or (z) avoid the entry of or judicial action, and to have vacated or terminatedvacated, lifted, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary or permanent) (an “Antitrust Order”) that would restrainrestricts, prevent prevents or delay prohibits the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each consummation of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under any Antitrust Law. The parties hereto will consult and cooperate with one another, and consider in good faith the HSR Act views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any other Regulatory party hereto in connection with proceedings under or relating to any Antitrust Law, use its commercially reasonable efforts to (i) cooperate in . Buyer shall pay all respects with each other filing and related fees in connection with any such filings that must be made by any of the parties under the Antitrust Laws. The parties hereto do not anticipate filing or submission Notification and in connection with Report Forms under the HSR Act. Subject to applicable law and as required by any investigation or other inquiryGovernmental Body, including any proceeding initiated by a private party, (ii) promptly inform the Company and Buyer each shall keep the other party of any communication received by such party from, or given by such party to, the Antitrust Division apprised of the Department status of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any matters relating to completion of the transactions contemplated herebyby this Section 6.3, (iii) permit including promptly furnishing the other partywith copies of notices or other material communications received by Buyer or the Company, as the case may be, or any of its Subsidiaries, from any third party and/or Governmental Body with respect to the transactions contemplated hereby. Neither the Company nor Buyer shall permit any of their representatives to participate in any meeting with any Governmental Body in respect of any filings, investigation or other inquiry unless it consults with the other party’s legal counselparty in advance and, to review any communication given the extent permitted by it tosuch Governmental Body, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give gives the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authoritythereat.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller the parties hereto will use its commercially reasonable 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 this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) Merger as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests petitions and other documents filings and to obtain as promptly as reasonably practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings permits and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary necessary, proper or advisable to obtain all such material consents, clearances, waivers, licenses, orders, registrations, permitsapprovals, permits and authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to use their commercially reasonable efforts to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated hereinpracticable.
(cb) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller the parties hereto shall, in connection with the efforts referenced in Section 7.1(b6.3(a) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Sources: Merger Agreement (Digital Cinema Destinations Corp.)
Third Party Consents and Regulatory Approvals. (a) Each The parties hereto shall cooperate with each other and use reasonable best efforts to promptly (i) prepare and file all necessary documentation, to effect all applications, notices, petitions and filings as soon as reasonably practicable, to obtain as promptly as reasonably practicable all permits, consents, approvals, authorizations and clearances, including under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act (the “HSR Act”) of Parent all third parties and Purchaser, on Governmental Authorities which are necessary or advisable to consummate the one handtransactions contemplated by this Agreement (including each of the Offer and the Merger), and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed comply with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of all such permits, consents, approvals and authorizations of all such third parties and Governmental Authorities; (ii) defend any lawsuits or other legal proceedings (other than those brought by a Governmental Authority) challenging this Agreement or the consummation of the transactions contemplated by this Agreement, each of Parent, Purchaser ; and Seller will (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement. The parties further agree to use its commercially reasonable best efforts to offer to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate effective the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not including taking all such further action as reasonably may be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Lawresolve such objections, or if any administrative or judicial Actionany, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging as the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party toUnited States Federal Trade Commission, the Antitrust Division of the United States Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”) state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, Person may assert under Regulatory Law (iiias hereinafter defined) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything , and to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, avoid or portions thereof, submitted to eliminate each and every impediment under any law that may be asserted by any Governmental Authority with respect to outside competition counsel only.
(e) the transactions contemplated by this Agreement so as to enable the Merger to occur as promptly as reasonably practicable. Notwithstanding anything in the foregoing or any other provision of this Agreement to the contrary, (i) in no event shall the Parent or the Purchaser be obligated to, and the Seller and its subsidiaries shall not, not without the prior written consent of the Parent, publicly agree or before proffer to divest or hold separate, or enter into any Governmental Authority licensing or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwisesimilar arrangement with respect to, any saleassets (whether tangible or intangible) or any portion of any business of the Parent, divestiturethe Purchaser, dispositionthe Seller or any of their subsidiaries and (ii) in no event shall the Parent or any of its subsidiaries be obligated to litigate or participate in the litigation of any action, prohibition suit, claim or limitation proceeding seeking to (A) make illegal or other action of a type described in Section 7.1(e).otherwise prohibit or materially delay
Appears in 1 contract
Sources: Merger Agreement (Xerox Corp)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreementhereof, each of ParentSeller and each Seller Owner shall use their commercially reasonable best efforts, Purchaser and Seller will Buyer shall use its commercially reasonable efforts to efforts, to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated herein as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Body or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by any Seller Party or Buyer Party or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated herein;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement under (A) the Exchange Act and any other applicable Laws federal or state securities laws, (B) the HSR Act and regulations any related governmental request thereunder, and (C) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by in, and to fully carry out the purposes of, this Agreement (includingAgreement. The Seller Parties and Buyer shall cooperate in connection with the making of all such filings, without limitationincluding providing copies of all such documents to the non-filing Party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Each Seller, each of Seller Owner and Buyer shall use their respective commercially reasonable best efforts to furnish the Offer and other Party, upon reasonable request, all information reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, applicable Rules in consultation connection with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by in this Agreement Agreement. For the avoidance of doubt, Buyer and Seller agree that nothing contained in this Section 6.3(a) shall modify or affect their respective rights and responsibilities under Section 2.8(f) or Section 2.8(g).
(iib) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees of the Buyer Parties and the Seller Parties agree to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary an appropriate filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby herein within 10 business days after the date hereof and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreementfiling. Notwithstanding anything to the contrary contained in this Section 7.1(d)Agreement, (i) the Buyer Parties reserve shall be entitled to direct the antitrust defense of the transactions contemplated herein in any investigation or litigation, including in connection with negotiations with any Governmental Body regarding the resolution of any investigation or litigation and (ii) in no event will the Buyer Parties or any of their Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture, to accept any operational restriction, or take any other action that, in the reasonable judgment of Parent, could be expected to limit the right of Parent to limit disclosure own or operate all or any portion of documents, their respective businesses or portions thereof, submitted assets. The Seller Parties shall use reasonable best efforts to any Governmental Authority provide support and assistance of the Buyer Parties in all material respects in all such investigations and litigation to outside competition counsel onlythe extent required by the Buyer Parties.
(ec) Notwithstanding anything Subject to applicable law and as required by any Governmental Body, each Party shall keep the others apprised of the status of matters relating to completion of the transactions contemplated in this Agreement Section 6.3, including promptly furnishing the other with copies of notices or other material communications received by such Party, as the case may be, or any of its Subsidiaries, from any third party or Governmental Body with respect to the contrary, Seller transactions contemplated herein. Neither Sellers nor Buyer shall not, without the consent permit any of Parent, publicly or before their representatives to participate in any meeting with any Governmental Authority Body in respect of any filing, investigation or other third partyinquiry unless it consults with the other Party in advance and, offerto the extent permitted by such Governmental Body, suggest, propose or negotiate, gives the other Party the opportunity to attend and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described participate.
(d) Except as otherwise provided in Section 7.1(e)11.3, each Party’s cost and expense of compliance with this Section 6.3 shall be borne by the Party incurring such expense.
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser and Seller the parties hereto will use its commercially 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 this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party parties and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests petitions and other documents filings and to obtain as promptly as reasonably practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings permits and authorizations necessary to be obtained from any third party and/or any Governmental Authority Entity in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary necessary, proper or advisable to obtain all such material consents, clearances, waivers, licenses, orders, registrations, permitsapprovals, permits and authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees (A) to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereofother, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act within ten (10) Business Days of the date hereof, and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger transactions contemplated by this Agreement with other Governmental Authorities Entities under any other antitrust, competition, trade regulation or other Regulatory Law as promptly as practicable and advisable after the date hereof, with respect to the transactions contemplated hereby and hereby; (B) to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and Law; (C) to use their reasonable best efforts to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable practicable; and (D) not to extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a any other Governmental Authority Entity not to consummate the transactions contemplated by this Agreement, without except with the prior consultation and the written consent of Parentthe other parties hereto (which, which consent in the case of the extension of any applicable time period, shall not be unreasonably withheld withheld, conditioned or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(cb) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller the parties hereto shall, in connection with the efforts referenced in Section 7.1(b6.4(a) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority Entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority Entity or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental AuthorityEntity, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority Entity from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental AuthorityEntity. Any and all filing fees in connection with any filings made under this Section 6.4 shall be borne by the Purchaser.
(dc) Notwithstanding anything If any objections are asserted with respect to the contrary in this Agreementtransactions contemplated hereby under any Regulatory Law or if any Action, neither Parent nor Purchaser whether judicial or administrative, is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Regulatory Law, each of the parties hereto shall have an obligation under this Agreementuse its reasonable best efforts to: (i) oppose or defend against any Action to divest prevent or agree to divest enjoin the consummation of this Agreement (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assetsand the transactions contemplated herein); or and (ii) take any such actions as reasonably necessary to defend against overcome such objections or overturn any litigation Action by any Governmental Entity or private party to block consummation of this Agreement (and the transactions contemplated herein), including by (A) defending any Action brought by any Governmental Authority relating Entity or private party in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein, and/or (B) resolving any objections or challenges such Governmental Entity or private party may have to such transactions under such Regulatory Law so as to permit consummation of the transactions contemplated by this Agreement. Notwithstanding anything , including, but not limited to, by proposing, negotiating, committing to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effecteffecting, by consent decree, hold separate order order, trust or otherwise, the sale, divestiture or disposition of such assets or businesses of the Purchaser or the Purchaser’s Subsidiaries or Affiliates or of the Company or the Company’s Subsidiaries as may be required to resolve such objections or challenges; provided that each of the parties hereto shall cooperate with one another in connection with all proceedings related to the foregoing. Nothing in this Agreement (including in Sections 6.4(a), Section 6.4(b) or this Section 6.4(c)) shall require the Purchaser or any of its Subsidiaries to (i) propose, negotiate, or offer to commit or agree to or effect by consent decree, hold separate order, or otherwise, the sale, divestiture, license, disposition or hold separate of (A) any asset of the Purchaser or the Purchaser’s Subsidiaries, or (B) any asset of the Company or the Company’s Subsidiaries, in the case of this clause (B) only, if such sale, divestiture, license, disposition or hold separate with respect thereto would, individually or in the aggregate, reasonably be expected to have an effect that is material measured in relation to the Company and the Company’s Subsidiaries taken as a whole, (ii) (A) conduct or agree to conduct the business of the Purchaser or the Purchaser’s Subsidiaries in any particular manner or agree to any restrictions or limitations with respect to the business of the Purchaser or the Purchaser’s Subsidiaries, or (B) conduct or agree to conduct the business of the Company or the Company’s Subsidiaries in any particular manner or agree to any restrictions or limitations with respect to the business of the Company or the Company’s Subsidiaries if, in the case of this clause (B) only, such conduct, agreement, restrictions or limitations with respect thereto, would, individually or in the aggregate, reasonably be expected to have an effect that is material measured in relation to the Company and the Company’s Subsidiaries taken as a whole, or (iii) agree to any other order, action or regulatory condition of any regulatory body, whether in an approval proceeding or another regulatory proceeding that if effected, would be adverse to the Purchaser, the Company or any of their respective Subsidiaries and would have an effect that is material measured in relation to the Company and the Company’s Subsidiaries taken as a whole. Notwithstanding anything herein to the contrary, none of the Sellers, the Company, or any of the Company’s Subsidiaries shall propose, negotiate or offer to commit to any sale, divestiture, license, disposition or hold separate of any asset contemplated to be held by the Purchaser, the Purchaser’s Subsidiaries, the Company, or the Company’s Subsidiaries following the consummation of the transactions contemplated by this Agreement or agree to conduct the business of the Purchaser, the Purchaser’s Subsidiaries, the Company, or the Company’s Subsidiaries in any particular manner or agree to any restrictions or limitations with respect to the business of the Purchaser, the Purchaser’s Subsidiaries, the Company, or the Company’s Subsidiaries, in each case without the prior written consent of the Purchaser.
(d) If the Purchaser proposes, negotiates, or offers to commit to and effect by consent decree, hold separate order, or otherwise, any sale, divestiture, dispositionlicense, prohibition disposition or limitation hold separate or other action of a type described in Section 7.1(e6.4(c), with respect to any assets or businesses of the Purchaser or any of the Purchaser’s Subsidiaries, or effective as of the Closing, the Company or any of the Company’s Subsidiaries, the Company and each Seller shall, and shall cause their respective Representatives to, reasonably cooperate as requested by the Purchaser in connection with any such sale, divestiture, license, disposition or hold separate or other action of a type described in Section 6.4(c), so long as such sale, divestiture, license, disposition or hold separate or other action is to be effective only as of the Closing.
(e) The Purchaser acknowledges that certain consents to the transactions contemplated by this Agreement for those designated Contracts set forth on Section 4.2(b)(iii) of the Company Disclosure Letter may be required and that such consents may not be obtained in connection with the consummation of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, Purchaser agrees that the Sellers and the Company and its Subsidiaries shall not have any liability to Purchaser (and Purchaser shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any consents that may have been or may be required in connection with the transactions contemplated by this Agreement under any designated Contract set forth on Section 4.2(b)(iii) of the Company Disclosure Letter or because of the default, acceleration or termination of or loss of right under any such Contract set forth on Section 4.2(b)(iii) of the Company Disclosure Letter as a result thereof; provided that nothing in this Section 6.4(e) shall have any effect upon or otherwise modify the condition set forth in Section 7.2(d).
Appears in 1 contract
Sources: Stock Purchase Agreement (Total System Services Inc)
Third Party Consents and Regulatory Approvals. (a) Each The parties hereto shall cooperate with each other and use reasonable best efforts to promptly (i) prepare and file all necessary documentation, to effect all applications, notices, petitions and filings as soon as reasonably practicable, to obtain as promptly as reasonably practicable all permits, consents, approvals, authorizations and clearances, including under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act (the “HSR Act”) of Parent all third parties and Purchaser, on Governmental Authorities which are necessary or advisable to consummate the one handtransactions contemplated by this Agreement (including each of the Offer and the Merger), and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed comply with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of all such permits, consents, approvals and authorizations of all such third parties and Governmental Authorities; (ii) defend any lawsuits or other legal proceedings (other than those brought by a Governmental Authority) challenging this Agreement or the consummation of the transactions contemplated by this Agreement, each of Parent, Purchaser ; and Seller will (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement. The parties further agree to use its commercially reasonable best efforts to offer to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under this Agreement and applicable Laws and regulations to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including (i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate effective the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not including taking all such further action as reasonably may be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Lawresolve such objections, or if any administrative or judicial Actionany, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging as the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party toUnited States Federal Trade Commission, the Antitrust Division of the United States Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”) state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, Person may assert under Regulatory Law (iiias hereinafter defined) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything , and to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, avoid or portions thereof, submitted to eliminate each and every impediment under any law that may be asserted by any Governmental Authority with respect to outside competition counsel only.
(e) the transactions contemplated by this Agreement so as to enable the Merger to occur as promptly as reasonably practicable. Notwithstanding anything in the foregoing or any other provision of this Agreement to the contrary, (i) in no event shall the Parent or the Purchaser be obligated to, and the Seller and its subsidiaries shall not, not without the prior written consent of the Parent, publicly agree or before proffer to divest or hold separate, or enter into any Governmental Authority licensing or other third partysimilar arrangement with respect to, offerany assets (whether tangible or intangible) or any portion of any business of the Parent, suggestthe Purchaser, propose the Seller or negotiateany of their subsidiaries and (ii) in no event shall the Parent or any of its subsidiaries be obligated to litigate or participate in the litigation of any action, and shall not commit suit, claim or proceeding seeking to (A) make illegal or effectotherwise prohibit or materially delay consummation of the Offer or the Merger, (B) restrict, prohibit or limit the ownership or operation by consent decreethe Parent or the Purchaser or their subsidiaries of all or any portion of the business or assets of the Seller or any of their respective subsidiaries or compel the Parent or the Purchaser or their subsidiaries or any of their respective subsidiaries to dispose of or hold separately all or any portion of the business or assets of the Parent or the Purchaser or the Seller or any of their respective subsidiaries, or impose any limitation, restriction or prohibition on the ability of the Parent or the Purchaser or their subsidiaries to conduct its business or own such assets, (C) impose limitations on the ability of the Parent or the Purchaser or their subsidiaries effectively to acquire, hold separate order or otherwiseexercise full rights of ownership of the shares of Seller Common Stock, including the right to vote any saleshares of Seller Common Stock acquired or owned by the Purchaser or the Parent or their subsidiaries pursuant to the Offer on all matters properly presented to the Seller Stockholders, divestitureor (D) require divestiture by the Parent or the Purchaser or their subsidiaries of any shares of Seller Common Stock. For purposes of this Agreement, disposition“Regulatory Law” means the ▇▇▇▇▇▇▇ Act of 1890, prohibition the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other federal, state or limitation foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws, including any antitrust, competition or other action trade regulation laws that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of a type described in Section 7.1(e)monopolization or restraint of trade or lessening competition through merger or acquisition or (ii) protect the national security or the national economy of any nation.
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreementhereof, each of Parent, Purchaser Seller and Seller will Buyer shall use its commercially their reasonable best efforts to to:
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under to consummate and make effective the transactions contemplated hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by Seller or Buyer in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary filings, and thereafter make any other submissions, in each case as required of such party by applicable Laws law, with respect to this Agreement under (A) the Exchange Act and any other applicable federal or state securities laws, and (B) any other applicable law; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Seller and Buyer shall cooperate with each other in connection with the making of all such filings, including, without limitation, if requested by the other party, providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, considering in good faith reasonable additions, deletions or changes suggested in connection therewith. Seller and Buyer shall use their respective reasonable best efforts to furnish to each other, upon reasonable request, all information reasonably necessary or advisable in connection with any application or other filing to be made pursuant to the rules and regulations of any applicable law in connection with the transactions contemplated by this Agreement. For the avoidance of doubt, Buyer and Seller agree that nothing contained in this Section 5.3(a) shall modify or affect their respective rights and responsibilities under Section 5.3(b).
(b) Each of Seller and Buyer shall give any notices to consummate third parties, and use their reasonable best efforts to obtain any third party consents required in connection with the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) as soon as practicable after the date hereof, including that are (i) preparing and filingnecessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in consultation with the other party and Seller Disclosure Schedule or the Buyer Disclosure Schedule, as promptly as practicable and advisable the case may be, or (iii) required to prevent the occurrence of an event that is reasonably likely to have a Business Material Adverse Effect or a Buyer Material Adverse Effect prior to or after the date hereofClosing, all documentation to effect all necessary applicationsit being understood that, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary except for the registrations to be obtained by Buyer and set forth on Section 3.3 of the Buyer Disclosure Schedules, Buyer shall not be required to make any payments in connection with the fulfillment of its obligations under this Section 5.3.
(c) Subject to applicable law and as required by any Governmental Authority, Seller and Buyer each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Section 5.3, including promptly furnishing the other with copies of notices or other material communications received by Buyer or Seller, as the case may be from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and hereby. Neither Seller nor Buyer shall permit any Representative to respond to participate in any inquiries received and supply as promptly as practicable meeting with any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative in respect of any Regulatory Lawfilings, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform inquiry unless it consults with the other party of any communication received in advance and, to the extent permitted by such party fromGovernmental Authority, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give gives the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authoritythereat.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms hereof and conditions of this Agreementapplicable Laws, Neuromed, Neuromed Canada and CombinatoRx shall each of Parent, Purchaser and Seller will use its commercially reasonable best efforts to (and shall cause their respective Subsidiaries to) as promptly as practicable
(i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper proper, or advisable under to consummate and make effective the transactions contemplated hereby;
(ii) obtain from any Governmental Authority or any other third party any consents, licenses, permits, waivers, approvals, authorizations or orders as is necessary for the authorization, execution, and delivery of this Agreement, the consummation of the transactions contemplated hereby and the performance of its respective obligations;
(iii) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Securities Act and the Exchange Act and any other applicable Laws federal, state or provincial securities laws, (B) the HSR Act, the Competition Act (Canada) and regulations any other applicable Antitrust Laws, and (C) any other applicable Laws; and
(iv) execute or deliver any additional instruments necessary to consummate the transactions contemplated by by, and to fully carry out the purposes of, this Agreement (includingAgreement. Neuromed, without limitation, Neuromed Canada and CombinatoRx shall cooperate with each other in connection with the making of the Offer and the Merger) as soon as practicable after the date hereofall such filings, including (i) preparing and filing, in consultation with providing copies of all such documents to the other non-filing party and as promptly as practicable its advisors prior to filing and, if requested, accepting reasonable additions, deletions or changes suggested in connection therewith. Neuromed, Neuromed Canada and advisable after the date hereof, CombinatoRx shall use their respective reasonable best efforts to furnish to each other all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and information required for any application or other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax rulings and authorizations necessary filing to be obtained from any third party and/or any Governmental Authority in order to consummate the Offer, the Merger or any of the other transactions contemplated by this Agreement and (ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax rulings, orders and approvals. In furtherance and not in limitation of the foregoing, each party hereto agrees to make or cause to be made, in consultation and cooperation with the other and as promptly as practicable and advisable after the date hereof, (i) any necessary filing of a Notification and Report Form made pursuant to the HSR Act rules and regulations of any applicable Laws (iiincluding all information required to be included in the Registration Statement) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger in connection with other Governmental Authorities under any other antitrust, competition, trade regulation or other Regulatory Law with respect to the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement. The parties hereto will not take any action that will have the effect of delaying, without prior consultation impairing or impeding the receipt of any required consents, licenses, permits, waivers, approvals, authorizations or orders and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant promptly respond to any Regulatory Lawrequests for additional information from any Governmental Authority. For the avoidance of doubt, CombinatoRx and Neuromed agree that nothing contained in this Section 6.3(a) shall modify or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be institutedaffect their respective rights and responsibilities under Section 6.3(b), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(cb) To Each of Neuromed, Neuromed Canada and CombinatoRx hereby covenants and agrees to use its reasonable best efforts, if necessary, to secure termination of any waiting periods under the extent permissible under applicable Law▇▇▇ ▇▇▇, each ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ (▇▇▇▇▇▇) and any other federal, state or foreign law, regulation, or decree designed to prohibit, restrict, or regulate actions for the purpose or effect of Parentmonopolization or restraint of trade (collectively, Purchaser “Antitrust Laws”) and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under approval of the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other party of any communication received by such party from, or given by such party toFederal Trade Commission, the Antitrust Division of the United States Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other applicable Governmental Authority, for the Merger and the other transactions contemplated hereby. None of Neuromed, Neuromed Canada or CombinatoRx shall commit to or agree with any Governmental Authority and to stay, toll or extend any applicable waiting period under any applicable Antitrust Laws, without the prior written consent of any material communication received the other. Notwithstanding the foregoing, nothing herein shall require Neuromed, Neuromed Canada or given CombinatoRx in connection with the receipt of any proceeding by a private partyregulatory approval, (i) to litigate or formally contest any proceedings relating to any regulatory approval process in connection with the Merger or (ii) to take, or agree to take, any action to satisfy an Adverse Regulatory Condition.
(c) Neuromed, Neuromed Canada and CombinatoRx will (i) promptly notify the other party of any written or oral communication to that party or its Affiliates from any Governmental Authority and, subject to applicable Laws (including Regulations, codes, plans, Orders and charges thereunder), permit the other party to review in advance any proposed written communication to any Governmental Authority, in each case regarding concerning the review, clearance or approval of any of the transactions contemplated hereby, hereby under any applicable Antitrust Laws; (iiiii) permit the other partynot agree to participate, or the other party’s legal counselto permit its Affiliates to participate, to review in any communication given by it to, and consult substantive meeting or discussion with each other any Governmental Authority in advance respect of any meeting filings, investigation or conference withinquiry concerning the review, clearance or approval of any of the DOJ, the FTC or transactions contemplated hereby under any such other Governmental Authority or, in connection applicable Antitrust Laws unless it consults with any proceeding by a private party, with any other Person, (iv) give the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party or its counsel the opportunity to attend and participate in such meetings meeting; provided that if the Governmental Authority or applicable Laws (including Regulations, codes, plans, Orders and conferences charges thereunder) does not permit such participation by the other party or its counsel, or if CombinatoRx’s and Neuromed’s respective counsels both agree in good faith that participation of the other party or its counsel would not be advisable, such party’s meeting with such Governmental Authority may proceed without the participation of the other party or its counsel; and (iii) furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) drafted by or in conjunction with outside counsel between it and its Affiliates and its respective Representatives on the one hand, and any Governmental Authority or members of such Governmental Authority’s staff on the other hand, concerning the review, clearance or approval of any of the transactions contemplated hereby under any applicable Antitrust Laws, except to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law Laws (including Regulations, codes, plans, Orders and charges thereunder) or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing instructions of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any such Governmental Authority.
(d) Notwithstanding anything Neuromed, Neuromed Canada and CombinatoRx shall furnish to each other all information required for any application or other filing under the contrary rules and regulations of any applicable Laws in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything CombinatoRx shall pay the filing and related fees in this Agreement connection with any such filings that must be paid to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiateAuthorities by CombinatoRx and Merger Sub, and Neuromed shall not commit pay the filing and related fees in connection with any such filings that must be paid to any Governmental Authorities by Neuromed.
(f) Each of Neuromed, Neuromed Canada and CombinatoRx shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain any third party consents required in connection with the Merger that are (i) necessary to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in the Neuromed Disclosure Schedule or the CombinatoRx Disclosure Schedule, as the case may be, or (iii) required to prevent the occurrence of an event that is reasonably likely to have a Neuromed Material Adverse Effect or a CombinatoRx Material Adverse Effect prior to or effectafter the Effective Time, by consent decreeit being understood that none of Neuromed, hold separate order Neuromed Canada or otherwise, CombinatoRx shall be required to make any sale, divestiture, disposition, prohibition or limitation or other action payments in connection with the fulfillment of a type described in its obligations under this Section 7.1(e6.3(f).
Appears in 1 contract
Sources: Merger Agreement (Combinatorx, Inc)
Third Party Consents and Regulatory Approvals. (a) Each of Parent and Purchaser, on the one hand, and Seller, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents or in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and each of Parent, Purchaser and Seller further agrees to take all steps necessary to cause, respectively, the Offer Documents or the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the Seller Stockholders, in each case, as and to the extent required by applicable federal securities Laws.
(b) Subject to the terms and conditions of this Agreement, each of Parent, Purchaser Buyer and Seller will use its commercially 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 this Agreement and applicable Laws and regulations Legal Requirements to consummate the transactions contemplated by this Agreement (including, without limitation, each of the Offer and the Merger) Contemplated Transactions as soon as practicable after the date hereof, including including
(i) preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, Tax ruling requests and other documents and to obtain as promptly as practicable all consents, clearances, waivers, licenses, orders, registrations, approvals, permits, Tax tax rulings and authorizations necessary to be obtained from any third party and/or any Governmental Authority Body in order to consummate the OfferContemplated Transactions, including the Merger or any of Approval Order from the other transactions contemplated by this Agreement and Bankruptcy Court, and
(ii) taking all reasonable steps as may be necessary to obtain all such material consents, clearances, waivers, licenses, registrations, permits, authorizations, Tax tax rulings, orders and approvals.
(b) Buyer acknowledges that Seller has filed a Chapter 11 Bankruptcy. In furtherance As such, Seller shall file a motion (the “Sale Motion”) with the Bankruptcy Court, seeking the Approval Order, subject to overbids (initial overbid must be at least $100,000.000 higher than the Purchase Price and not incremental overbids must increase by at least $100,000.00 thereafter) in limitation an Auction at the hearing on the Sale Motion, and of Buyer as the good faith purchaser of the foregoingAssets, each party hereto which shall be transferred thereto free and clear of liens, interests and encumbrances in accordance herewith, and the entry of the Approval Order. The Sale Motion shall seek entry of the Approval Order containing findings of fact and conclusions of law customary for such “free and clear” sales, inter alia, that Seller and Buyer have negotiated this Agreement in good faith, that Buyer is afforded the protections of Bankruptcy Code § 363(m), and that Buyer takes the Assets free and clear of all Encumbrances under Bankruptcy Code § 363(f). For purposes of this Agreement and notwithstanding anything to the contrary herein, Buyer hereby agrees to make or cause to be made, in consultation and cooperation with conduct the other and as promptly as practicable and advisable Closing after the date hereofissuance of a “Final Order” (as hereafter defined). As used in this Agreement, the term “Final Order” shall mean any order of the Bankruptcy Court or other court of competent jurisdiction as to which (i) any necessary filing of a Notification and Report Form pursuant to the HSR Act and (ii) all other necessary registrations, declarations, notices and filings relating to the Offer or Merger with other Governmental Authorities under any other antitrust, competition, trade regulation there is no stay or other Regulatory Law with respect to limitation on the transactions contemplated hereby and to respond to any inquiries received and supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and any other Regulatory Law and to take all other actions reasonably necessary to cause the expiration terms or termination of the applicable waiting periods under the HSR Act and any other Regulatory Law as soon as practicable and not extend any waiting period under the HSR Act or any other Regulatory Law or enter into any agreement with a Governmental Authority not to consummate the transactions contemplated by this Agreement, without prior consultation and the written consent of Parent, which consent shall not be unreasonably withheld or delayed. If necessary to obtain any regulatory approval pursuant to any Regulatory Law, or if any administrative or judicial Action, including any Action by a Governmental Authority or a private party, is instituted (or threatened to be instituted), challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Parent, Purchaser and Seller shall cooperate with each other and use its commercially reasonable efforts to (x) obtain any regulatory approval, (y) contest and resist any such Action, or (z) avoid the entry of or have vacated or terminated, lifted, reversed or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein.
(c) To the extent permissible under applicable Law, each of Parent, Purchaser and Seller shall, in connection with the efforts referenced in Section 7.1(b) to obtain all requisite approvals, clearances and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private partyeffectiveness, (ii) promptly inform no appeal, motion for reconsideration, writ of mandamus or other motion or application which, if granted, would reverse, modify, amend rescind or revoke the order, is pending, and (iii) the time to file an appeal, writ of mandamus or other motion or application which , if granted, would reverse, modify, amend, rescind or revoke the order, has expired. In addition, Seller shall request, by and through its Sale Motion, an Order providing for payment of a “Break-Up Fee” (defined below) to be paid to Buyer by any party of any communication received by such party from, or given by such party to, who outbids Buyer in the Antitrust Division of event that Buyer is ultimately not the Department of Justice high bidder for the Assets. The break-up fee shall be $50,000 (the “DOJBreak-Up Fee”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other party, or the other party’s legal counsel, to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, (iv) give the other party the opportunity to attend and participate in such meetings and conferences to the extent allowed by applicable Law or by the applicable Governmental Authority, (v) in the event one party is prohibited by applicable Law or by the applicable Governmental Authority from participating in or attending any meetings or conferences, keep the other promptly and reasonably apprised with respect thereto and (vi) cooperate in the filing of any memoranda, white papers, filings, correspondence, or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.
(d) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Purchaser shall have an obligation under this Agreement: (i) to divest or agree to divest (or cause any of its subsidiaries) anything material to any of its or their respective material businesses, material product lines or material assets, or to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any material limitation or material restriction on any of its or their respective businesses, product lines or assets; or (ii) to defend against any litigation brought by any Governmental Authority relating to the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1(d), the Parties reserve the right to limit disclosure of documents, or portions thereof, submitted to any Governmental Authority to outside competition counsel only.
(e) Notwithstanding anything in this Agreement to the contrary, Seller shall not, without the consent of Parent, publicly or before any Governmental Authority or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any sale, divestiture, disposition, prohibition or limitation or other action of a type described in Section 7.1(e).
Appears in 1 contract
Sources: Asset Purchase Agreement (LOCAL.COM)