agree as set forth below.
8.1.
Efforts.
Subject to Section 8.2 and the other terms and
conditions of this Agreement, each party will use all 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 applicable Law to consummate the
Merger and the other transactions contemplated by this Agreement, including
preparing and filing as promptly as practicable all documentation to effect all
necessary filings, notices, petitions, statements, registrations, submissions of
information, applications and other documents necessary to consummate the Merger
and the other transactions contemplated by this
58
Agreement; provided, however, that in no event shall any Party or its
Subsidiaries be required to pay, and without Parent's prior consent the Company
and the Company Subsidiaries shall not pay, prior to the Effective Time any fee,
penalties or other consideration to any Third Party to obtain any consent or
approval required for the consummation of the Merger under any Contract.
8.2.
GOVERNMENTAL APPROVALS.
(A)
EXCEPT FOR THE FILINGS AND NOTIFICATIONS MADE PURSUANT TO
APPLICABLE ANTITRUST LAWS, TO WHICH SECTIONS 8.2(B), (C), (D), (E), (F), (G),
(H) AND (I), AND NOT THIS SECTION 8.2(A), SHALL APPLY, WITHIN TEN (10) BUSINESS
DAYS AFTER THE DATE HEREOF, EACH OF PARENT, ACQUIROR AND THE COMPANY SHALL, AND
SHALL CAUSE ITS SUBSIDIARIES TO PREPARE AND FILE WITH THE APPROPRIATE
GOVERNMENTAL ENTITIES SUCH AUTHORIZATIONS, CONSENTS, NOTIFICATIONS,
CERTIFICATIONS, REGISTRATIONS, DECLARATIONS AND FILINGS THAT ARE NECESSARY IN
RESPECT OF THE PERMITS SET FORTH ON SCHEDULE 8.2(A) AND SHALL DILIGENTLY AND
EXPEDITIOUSLY PROSECUTE, AND SHALL COOPERATE FULLY WITH EACH OTHER IN THE
PROSECUTION OF, SUCH MATTERS.
(B)
ON OR BEFORE NOVEMBER 6, 2006, OR ANY SHORTER PERIOD AS REQUIRED
BY APPLICABLE ANTITRUST LAWS, EACH OF PARENT AND THE COMPANY SHALL FILE, OR
CAUSE TO BE FILED BY THEIR RESPECTIVE "ULTIMATE PARENT ENTITIES", ANY
NOTIFICATION AND REPORT FORMS AND RELATED MATERIAL REQUIRED TO BE FILED BY IT
WITH THE FEDERAL TRADE COMMISSION
(THE "FTC") AND THE ANTITRUST DIVISION OF THE
UNITED STATES DEPARTMENT OF JUSTICE UNDER THE HSR ACT (THE "ANTITRUST DIVISION")
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THEREAFTER
SHALL PROMPTLY MAKE ANY FURTHER FILINGS PURSUANT THERETO THAT MAY BE NECESSARY,
PROPER OR ADVISABLE.
(C)
UPON AND SUBJECT TO THE TERMS OF THIS SECTION 8.2, PARENT AND THE
COMPANY SHALL, AND SHALL CAUSE THEIR RESPECTIVE SUBSIDIARIES TO: (I) USE ALL OF
THEIR RESPECTIVE REASONABLE EFFORTS TO OBTAIN PROMPT TERMINATION OF ANY WAITING
PERIOD UNDER THE HSR ACT AND PROMPT TERMINATION OF ANY OTHER REQUISITE WAITING
PERIOD UNDER ANY APPLICABLE LAW; (II) REASONABLY COOPERATE AND CONSULT WITH EACH
OTHER IN CONNECTION WITH THE MAKING OF ALL FILINGS, NOTIFICATIONS AND ANY OTHER
MATERIAL ACTIONS PURSUANT TO THIS SECTION 8.2, INCLUDING SUBJECT TO APPLICABLE
LAW, BY PERMITTING COUNSEL FOR THE OTHER PARTY TO REVIEW IN ADVANCE, AND
CONSIDER IN GOOD FAITH THE VIEWS OF THE OTHER PARTY IN CONNECTION WITH, ANY
PROPOSED WRITTEN COMMUNICATION TO ANY GOVERNMENTAL ENTITY AND BY PROVIDING
COUNSEL