February 15, 2020

Conditions Precedent

Conditions Precedent: antitrust conditions precedent

Actavis/Forest Labs. (FTC 2014) | Actavis/Warner Chilcott (FTC 2013) | Albertsons/Safeway (FTC 2014) | American Airlines/U.S. Airways (DOJ 2013) | Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13) | Anheuser-Busch Inbev/SabMiller (TBA 2015)AT&T/DirecTV (DOJ 2014) | Comcast/Time Warner (DOJ 2014) | ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014) | Dollar Tree/Family Dollar (FTC 2014-2015)Express Scripts/Medco (FTC 2011-12)  | Gannett Co./Belo Corp. (DOJ 2013) | Jos A. Bank/Men’s Warehouse (FTC 2014) | Kroger/Harris Teeter (FTC 2014) | Medtronic/Covidien (FTC 2014)Mylan/Agila Specialties (FTC 2013) | National CineMedia/Screenvision (DOJ 2014-2015)Nielsen Holdings/Arbitron (FTC 2012-14) | Office Depot/OfficeMax (FTC 2013)  | Pinnacle Entertainment/Ameristar Casinos (FTC 2013) | Sysco/US Foods (FTC 2014) | Tyson Foods/Hillshire Brands (TBD 2014) | Verso Paper/Newpage Holdings (DOJ 2014-2015)Western Digital/Hitachi (FTC 2012) | Zillow/Trulia (FTC 2014-2015)



Actavis/Forest Laboratories (FTC 2014)

(c)             Conditions Precedent.  §7.1(d)(i)

Any applicable waiting period (or extension thereof) relating to the Mergers under the HSR Act, the Antitrust Laws of the jurisdictions set forth on Section 7.1(d) of the Company Disclosure Letter and similar foreign statutes and regulations of any jurisdiction that Parent reasonably determines is material to the business and operations of the Company or Parent shall have expired or been terminated, and any pre-closing approvals or clearances reasonably required thereunder shall have been obtained, and (ii) no legal proceeding by a Governmental Entity under any Antitrust Law of the United States or any jurisdiction set forth on Section 7.1(d) of the Company Disclosure Letter or any jurisdiction that Parent reasonably determines is material to the business and operations of the Company or Parent shall be threatened in writing or pending against the Company, Parent, US Holdco or the Merger Subs that is reasonably likely to temporarily or permanently enjoin, restrain or prevent the consummation of the First Merger;

Actavis/Warner Chilcott (FTC 2013)

(c)             Conditions Precedent.  § 9.1(a)(iv): This Agreement may be terminated at any time prior to the Effective Time . . . (iv) by either Warner Chilcott or Actavis if an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Acquisition or the Merger and such injunction shall have become final and non-appealable, provided that the right to terminate this Agreement pursuant to this Clause 9.1(a)(iv) shall not be available to a Party whose breach of any provision of this Agreement shall have caused such injunction[.]

Albertsons/Safeway (FTC 2014)

(c)             Conditions Precedent.  § 4.3(b)

None of the execution, delivery or performance of this Agreement by the Parent Entities and Merger Sub or the consummation by the Parent Entities of the Merger or any other transaction contemplated by this Agreement will require (with or without notice or lapse of time, or both) any consent, approval, authorization or permit of, action by, or filing or registration with or notification to, any Governmental Entity, other than (i) the filing and recordation of the Certificate of Merger as required by the DGCL, (ii) compliance with any applicable requirements of the HSR Act and other applicable foreign or supranational antitrust and competition Laws (including the filing of the pre-merger notification report under the HSR Act), (iii) compliance with the applicable requirements of the Exchange Act and any other applicable federal or state securities or blue sky Laws, (iv) filings with the SEC as may be required by any of the Parent Entities in connection with this Agreement and the transactions contemplated hereby, and (v) where the failure to obtain such consents, approvals, authorizations or permits of, or to make such filings, registrations with or notifications to any Governmental Entity would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

American Airlines/US Airways (DOJ 2012)

(c)             Conditions Precedent.  § 5.1(b)(a)               Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions:

                        . . . .

                        (b) Regulatory Approvals. (i) The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been earlier terminated, and any approval or authorization required to be obtained under the EU Merger Regulation in connection with the consummation of the Merger shall have been obtained, (ii) any approval or authorization required to be obtained from the FAA and DOT in connection with the consummation of the Merger shall have been obtained, (iii) any approval or authorization required to be obtained from any other Governmental Entity for the consummation of the Merger shall have been obtained, and (iv) any approval or authorization required under any other foreign antitrust, competition or similar Laws, in each case in connection with the consummation of the Merger and the transactions contemplated by this Agreement, shall have been obtained, except for those, in the case of clauses (iii) and (iv), the failure of which to obtain would not, individually or in the aggregate, (x) reasonably be expected to result in an American Material Adverse Effect, a US Airways Material Adverse Effect or a Newco Material Adverse Effect or (y) provide a reasonable basis to conclude that American, US Airways or any of their respective directors or officers would be subject to the risk of criminal liability.

                        (c) No Orders or Restraints; Illegality. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, makes illegal or otherwise prohibits consummation of the Merger or the other transactions contemplated by this Agreement (each, an “Order”), and no Governmental Entity of competent jurisdiction has proposed (and not withdrawn) an Order that (x) could have a Newco Material Adverse Effect or (y) would provide a reasonable basis to conclude that American, US Airways or any of their respective directors or officers would be subject to the risk of criminal liability.


Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13)

(c)             Conditions Precedent. § 8.01(a)-(b):       Conditions to the Merger. The consummation of the Merger shall be subject to the following conditions precedent, each of which shall have been satisfied, or waived by the applicable party indicated in the relevant subsection (it being understood that conditions that may be waived by only one party are conditions solely to such party’s obligations), prior to the Closing Date: . . .

                        (a) the Required Approvals shall have been obtained

                        (b) no preliminary, temporary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a Governmental Authority, nor any statute, rule, regulation or executive order promulgated or enacted by any Governmental Authority after the date hereof, shall be in effect that would make the Merger, the Offer and the transactions contemplated by this Agreement illegal or otherwise prevent the consummation thereof, unless waived by the Company and ABI; 


Anheuser-Bush Inbev/SabMiller (TBA 2015)

(c)               Conditions Precedent. Appendix 1, Appendix 2(Part B): (Appendix 1) Pre-conditions to the transaction: . . . (b) All necessary notifications and filings having been made and all or any applicable waiting periods (including any extensions thereof) under the HSR Act and the rules and regulations made thereunder having expired, lapsed or been terminated as appropriate in each case in respect of the Transaction and the proposed acquisition of any SABMiller Shares or control of SABMiller by AB InBev or any member of the AB InBev Group.

                        (Appendix 2 Part B) Additional Conditions to the UK Scheme: In addition, AB InBev and SABMiller have agreed that the Transaction will (subject to the City Code and to the extent permissible by law and regulation) be conditional upon the following Conditions and, accordingly, the necessary actions to make the UK Scheme effective will not be taken unless the following Conditions (as amended if appropriate) have been satisfied or, where relevant, waived: . . . (b) if the Pre-Condition set out in paragraph (b) (US clearance) of Appendix 1 is waived, all necessary notifications and filings having been made and all or any applicable waiting periods (including any extensions thereof) under the HSR Act and the rules and regulations made thereunder having expired, lapsed or been terminated as appropriate in each case in respect of the Transaction and the proposed acquisition of any SABMiller Shares or control of SABMiller by AB InBev or any member of the AB InBev Group;

AT&T/DirecTV (DOJ 2014)

(c)             Conditions Precedent.  §7.1(c): (i) The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been earlier terminated and (ii) all Governmental Consents required to be obtained from the FCC for the consummation of the Merger shall have been obtained and be in full force and effect. For purposes of this Agreement, the term “Governmental Consents” shall mean all notices, reports and other filings required to be made prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries with, and all consents, registrations, approvals, permits, expirations of waiting periods and authorizations required to be obtained prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated hereby.

                        §6.5(a): To the extent necessary or advisable to obtain any consent, registration, approval, permit, expiration of waiting period or authorization from any Governmental Entity in order to consummate the Merger prior to the Termination Date, (x) Parent shall, and shall cause its Subsidiaries to, and commit to cause the Company and its Subsidiaries to, take the actions and agree to those undertakings set forth on Section 6.5(a) of the Parent Disclosure Letter and (y) Parent shall, and shall cause its Subsidiaries to take, other actions involving Parent and its Subsidiaries that are in the aggregate de minimis (for the avoidance of doubt, not involving any divestiture, holding separate any business or assets or other similar action). Except as provided in the immediately preceding sentence, nothing in this Agreement shall require, or be construed to require, (i) Parent or any of its Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of Parent or any of its Subsidiaries and (ii) Parent, the Company or any of their respective Subsidiaries to take or refrain from taking any action (including any divestiture, holding separate any business or assets or other similar action) or to agree to any restriction or condition with respect to any assets, operations, business or the conduct of business of the Company and its Subsidiaries, if, in the case of this clause (ii), any such action, failure to act, restriction, condition or agreement, individually or in the aggregate, would reasonably be likely to have a Company Material Adverse Effect (read without regard to the exceptions set forth therein and without giving effect to clause (A) thereof) (except as provided in the immediately preceding sentence, the occurrence of any of the matters specified in clause (i) or clause (ii) above shall constitute a “Regulatory Material Adverse Effect”). In addition, in measuring whether a Regulatory Material Adverse Effect has occurred, the expected loss of any reasonably expected synergies (both cost and revenue) relating to any restriction or condition shall be taken into account as if the Company had an adverse effect to its financial condition and results of operations equal to the expected amount of applicable synergies affected by any such restriction or condition.  

Comcast/Time Warner (DOJ 2014)

(c)               Conditions Precedent. § 9.01: Conditions to the Obligations of Each Party. The obligations of the Company, Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver of the following conditions: . . . (b)(i) any applicable waiting period (or extensions thereof) under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated and (ii) any applicable waiting period (or extensions thereof) or approvals under each other applicable Competition Law relating to the transactions contemplated by this Agreement and set forth on Section 9.01(b) of the Company Disclosure Schedule shall have expired, been terminated or been obtained (solely with respect to the obligations of Parent and Merger Subsidiary, in each case without the imposition of any Burdensome Condition);

ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014)

(c)               Conditions Precedent. §6.01: Conditions to Obligations of Each Parent’s Group. The obligations of each Parent’s Group to commence the Closing as contemplated by Section 2.01 are subject to the satisfaction (or waiver by each Parent) at or prior to the Closing of the following conditions:

                        (a) any Consents under the Antitrust Laws in each of the jurisdictions set forth on Schedule 6.01(a) shall have been obtained;

                        (b) no Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated or enforced, and there shall be no Law or final, permanent, nonappealable injunction or Order which is in effect and which would reasonably be expected to prohibit the Closing or have, individually or in the aggregate, a Material Adverse Effect;

                        (c) there shall be no then-pending lawsuit or administrative action initiated by any Governmental Entity asserting that the Contemplated Transactions violate Antitrust Laws and seeking to enjoin the Closing;

                        (d) no Governmental Entity shall have threatened in a letter to the Parties to commence a lawsuit or administrative action that asserts that the Contemplated Transactions violate Antitrust Laws and seeking to enjoin the Closing (or unwind any material portion of the Contemplated Transactions should the Closing occur), or, if such threat was made, it shall have been retracted; and

                        (e) the Contributed Subsidiaries shall have received as of the Closing proceeds from the Financing in an amount no less than $600 million from third-party lenders that are unaffiliated with any of the Parties, on terms that are commercially reasonable and that do not alter any of the terms of the Contemplated Transactions or require any credit support to be provided by the Parent or any of their Affiliates.


Dollar Tree/Family Dollar (FTC 2014-2015)


(c)               Conditions Precedent. § 6.1(b) and § 6.1(e): Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of each party to effect the merger shall be subject to the fulfillment (or waiver by the Company and Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of the following conditions:

                        (b) No injunction by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted or be effective, in each case that prohibits or makes illegal the consummation of the Merger.

                        . . . .


                        (e) All waiting periods applicable to the Merger under the HSR Act shall have expired or been terminated.

Express Scripts/Medco (FTC 2011)

(c)             Conditions Precedent. § 6.1(e) and § 6.2(d): Governmental Consents. (e) (i) Governmental Consents.Governmental Consents. (e) (i) The waiting period (and any extensions thereof) under the HSR Act applicable to the Mergers shall have expired or been terminated, any approval from Governmental Entities set forth on Schedule 6.1(e)(i) shall have been obtained and shall be in effect, or, with respect to waiting periods, shall have expired or been terminated, and (ii) all material filings with any Governmental Entity set forth on Schedule 6.1(e)(ii) required for the consummation of the Mergers and the other Transactions contemplated hereby shall have been made (collectively, the matters addressed in clauses (i) and (ii), the “Required Governmental Consents”). This condition shall be deemed to be satisfied, insofar as the items set forth on Schedule 6.1(e)(i) and Schedule 6.1(e)(ii) are concerned, if not earlier satisfied, on the fifth (5th) Business Day prior to the Outside Date (without giving effect to any extension thereof); provided, that, nothing in the foregoing shall limit any of the other conditions set forth in this Article VI.

            (d) There shall be (i) no Proceeding pending in a United States District Court commenced by a Governmental Entity seeking an Order that would prohibit, restrain or make illegal the consummation of the Mergers or the other Transactions under the U.S. antitrust laws, (ii) no motion of a Governmental Entity pending in a United States Court of Appeals, seeking on an expedited basis, appeal, review, rehearing or reconsideration (each, an “Expedited Appeal”) of the matters set forth in clause (i) that has been granted by such United States Court of Appeals, (iii) no request or petition for an Expedited Appeal that has been made or filed by any Governmental Entity and (iv) all deadlines for the making or filing of any such request or petition that may be specified by any statute, regulation, court order or guideline shall have passed without any request or petition for such Expedited Appeal having been made or filed by such Governmental Entity, except, in the case of (iii) and (iv), to the extent any such request or petition shall have been subsequently denied; provided, that, from and after the fifth (5th) Business Day preceding the Outside Date (as the same may be extended), clauses (iii) and (iv) shall cease to be effective for any purpose, including for purposes of this Article VI and Article VII.

Gannett Co./Belo Corp. (DOJ 2013)

(c)               Conditions Precedent. § 7.1(a)-(b): Section 7.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction or waiver in writing by Gannett and the Company at or prior to the Effective Time of the following conditions:

                        (a) (i) Any waiting period (and any extension thereof) applicable to consummation of the Transaction under the HSR Act shall have expired or been terminated, any standstill agreement entered into by Gannett with either the DOJ or FTC for a period of up to ninety (90) days from the expiration of the waiting period shall have been terminated or expired and any approvals required under the HSR Act shall have been obtained and (ii) the FCC Consent shall have been granted and shall be in full force and effect;

                        (b) No judgment, decree, injunction, ruling or order of any Governmental Authority prohibiting the consummation of the Merger or any of the other transactions contemplated by this Agreement or by the Restructuring Agreements shall be in effect;

Jos A. Bank/Men’s Wearhouse (FTC 2014)

(c)            Conditions Precedent. §§ 4.5 and 5.4 Required Filings and Consents. The execution and delivery by the Company of this Agreement does not, and the performance by the Company of this Agreement will not, require any consent, approval, order, authorization or permit of, or declaration, registration, filing with, or notification to (collectively, “Consents”), any Governmental Entity, except for (a) applicable requirements, if any, of (i) the Exchange Act, including the filing with the SEC of the Schedule 14D-9, (ii) state securities or “blue sky” Laws, (iii) the DGCL to file the Certificate of Merger or other appropriate documentation and (iv) Nasdaq, (b) those required by the HSR Act, (c) such filings and approvals as are required to be made or obtained under any foreign antitrust, competition or similar Laws in connection with the consummation of the Offer, the Merger and the other transactions contemplated hereby and as set forth in Section 4.5 of the Company Disclosure Letter and (d) such Consents, the failure of which to obtain, would not reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Kroger/Harris Teeter (FTC 2014)

(c)               Conditions Precedent. §6.1(b), (c): The respective obligations of the Parties to effect the Merger shall be subject to the satisfaction at or before the Effective Time of the following conditions . . .

                        §6.1(b) No Injunctions or Restraints; Illegality. No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition (an “Injunction”) preventing the consummation of the Merger, or any of the other transactions contemplated by this Agreement shall be in effect. No statute, rule, regulation, order, Injunction or decree shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Merger or any other transactions contemplated by this Agreement.

                        (c) Regulatory Approvals. (i) The applicable waiting period under the HSR Act (and any extension thereof) relating to the Merger shall have expired or been earlier terminated and any Agreement with any Governmental Entity not to close the Merger shall have expired or been terminated and (ii) other than the filing of the Articles of Merger, all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity in connection with the Merger and the consummation of the other transactions contemplated by this Agreement, the failure of which to file, obtain or occur would be reasonably expected to have a Parent Material Adverse Effect or a Company Material Adverse Effect, shall have been filed, been obtained or occurred on terms and conditions which would not be reasonably expected to have a Parent Material Adverse Effect or a Company Material Adverse Effect.

Medtronic/Covidien (FTC 2014)

(c)               Conditions Precedent. Appendix III § 3(c)-(e), (g): The Medtronic Parties and Covidien have agreed that, subject to paragraph 6 of this Appendix III, the Acquisition will also be conditional upon the following matters having been satisfied or waived on or before the Sanction Date: . . .

                        (c) the applicable waiting periods under the HSR Act in connection with the Acquisition and/or the Merger shall have expired or been terminated;

                        (d) to the extent that the Acquisition constitutes a concentration within the scope of the EC Merger Regulation or is otherwise a concentration that is subject to the EC Merger Regulation, the European Commission deciding that it does not intend to initiate any proceedings under Article 6(1)(c) of the EC Merger Regulation in respect of the Acquisition or to refer the Acquisition (or any aspect of the Acquisition) to a competent authority of an EEA member state under Article 9(1) of the EC Merger Regulation or otherwise deciding that the Acquisition is compatible with the common market pursuant to Article 6(1)(b) of the EC Merger Regulation;

                        (e) all required Clearances shall have been obtained and remain in full force and effect and all applicable waiting periods shall have expired, lapsed or been terminated (as appropriate), in each case in connection with the Acquisition and/or the Merger, under the antitrust, competition or foreign investment laws of Canada, the People’s Republic of China, Japan, Israel, Turkey, Russia and South Korea;

                        . . . .

                        (g) no (i) Law, (ii) injunction, restraint or prohibition by any court of competent jurisdiction or (iii) injunction, order or prohibition under any Antitrust Law by any Relevant Authority which prohibits consummation of the Acquisition or the Merger shall have been enacted or entered and shall continue to be in effect;

Mylan/Agila Specialties (FTC 2013)

(c)               Conditions Precedent. Schedule 2 §1, 3: There shall be no:

                        1.1.1    injunction, order, Proceeding or decree of any nature of any Governmental Authority of competent jurisdiction that is in effect that prevents the consummation of the transactions contemplated by this Agreement; or

                        1.1.2    Applicable Law that is in effect that prevents the consummation of the transactions contemplated by this Agreement.

                        For purposes of this paragraph 1, the terms below will have the definitions set forth in this paragraph, instead of the definitions set forth in Schedule 12:

                        “Governmental Authority” shall mean any multinational, national, federal or state government, or any entity, authority, agency, ministry, commission, tribunal, arbitral body, court or other similar body exercising executive, legislative, judicial, taxing, regulatory or administrative authority or functions of such government, including any authority or quasi- governmental entity established to perform any of these functions; and

                        “Proceeding” shall mean any action, litigation or suit (whether civil, criminal, administrative, judicial or investigative) commenced or brought, by or before any Governmental Authority.

                        3.         REGULATORY APPROVALS

                        3.1       Insofar as the Transaction, in whole or in part, gives rise to:

                        3.1.1    a notification obligation under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), the notifications of the Seller and the Purchaser pursuant to the HSR Act having been made to the USA Federal Trade Commission or the U.S. Department of Justice, Antitrust Division; and

                        3.1.2    any other mandatory merger control notification obligation in any jurisdiction where the Company has made material sales since 1 January 2012, all such mandatory merger control filings having been made to the relevant Competition Authority in respect of the Transaction, provided that for this purpose, sales in a jurisdiction shall be deemed to be material if sales revenues generated in that jurisdiction exceeded ***

                        3.2       In respect of any notification obligation arising under paragraphs 3.1.1 and 3.1.2 of this Schedule 2:

                        3.2.1    all consents and approvals of any such Competition Authority which are required to be obtained before the Transaction may be completed having been obtained either unconditionally or subject to such Commitments as shall be reasonably acceptable to the Seller and the Purchaser and in accordance with Clause 4.4 of this Agreement; or

                        3.2.2    all applicable mandatory waiting periods and any extensions thereof in connection with the relevant notification having expired or been terminated

National CineMedia/Screenvision (DOJ 2014-2015)

(c)               Conditions Precedent. § 7.01(a)-(b); 702(d); 703(d): Conditions to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or mutual waiver, at or prior to the Closing, of each of the following conditions:

                        (a) The filings of Parent and Company Member pursuant to the HSR Act shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated and any commitment to or agreement with a Government Entity to stay, toll or extend any applicable waiting period under the HSR Act made by a party pursuant to the terms of Section 5.09 shall have been satisfied, expired or withdrawn. Any commitment to, or agreement with, a Government Entity to stay, toll, or extend any applicable waiting period under the HSR Act made by any party pursuant to the terms of Section 5.09 shall have been satisfied, expired or withdrawn.

                        (b) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing the transactions contemplated hereunder to be rescinded following completion thereof.

                        . . . .

                        702 (d) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which enjoins, restrains or otherwise prohibits the transactions contemplated hereby.

                        . . . .

                        703 (d) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which enjoins, restrains or otherwise prohibits the transactions contemplated hereby.

 

Nielsen Holdings/Arbitron (FTC 2012-13)

(c)               Conditions Precedent. § 7.01(b)-(c): The respective obligation of each party hereto to effect the Merger is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

                        (b) Antitrust. Any waiting period (and any extension thereof) applicable to the Merger under the HSR Act shall have been terminated or shall have expired.

                        (c) No Injunctions or Restraints. No Judgment issued by any Governmental Entity or other Law preventing the consummation of the Merger shall be in effect; provided, however, that prior to asserting this condition, each of the parties hereto shall have complied with Section 6.03.

Office Depot/OfficeMax (FTC 2013)

(c)               Conditions Precedent. § 7.1(b),(c): 7.1 Conditions to the Obligations of Each Party. The obligations of each of the parties to consummate the Transactions shall be subject to the satisfaction of the following conditions: . . .

                        (b) (i) Any waiting period (and any extension thereof) applicable to the Transactions and the other transactions contemplated by this Agreement shall have been terminated or shall have expired, and any approvals, consents or clearances required in connection with the Transactions and the other transactions contemplated by this Agreement shall have been obtained, in each case, under the HSR Act, the Canadian Competition Act and the Mexican Federal Law on Economic Competition and (ii) any agreement entered into by each of the parties and a Governmental Authority under any Antitrust Laws, which agreement provides that the parties will not consummate the Transactions and the other transactions contemplated by this Agreement shall have expired or been terminated.

                        (c) No outstanding judgment, injunction, order or decree of a competent United States federal or state Governmental Authority shall prohibit or enjoin the consummation of the Transactions or the other transactions contemplated by this Agreement.

Pinnacle Entertainment/Ameristar Casinos (FTC 2013)

(c)               Conditions Precedent. §6.1(b), (c): Conditions to Each Party’s Obligation to Effect the Merger. The obligation of each party to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions:

                        (b) No Injunctions or Legal Restraints; Illegality. No temporary restraining order, preliminary or permanent injunction or other judgment, order or decree issued by any court of competent jurisdiction or other legal restraint or prohibition shall be in effect, and no Law shall have been enacted, entered, promulgated, enforced or deemed applicable by any Governmental Entity that, in any case, prohibits or makes illegal the consummation of the Merger.

                        (c) HSR Act; Antitrust. Any applicable waiting period (and any extension thereof) under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated.

Sysco/US Foods (FTC 2014)

(c)             Conditions Precedent. §§ 3.3. and 4.4: Consents and Approvals; No Violations. Except for (a) filings under Section 2.3, (b) filings under the HSR Act and (c) as set forth in Section 3.3 of the Company Disclosure Letter, the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not (i) violate any Law applicable to the Company or any of its Subsidiaries or by which any of their respective properties or assets are bound or affected; (ii) require any notification to or filing or registration by the Company or any of its Subsidiaries with, or consent or approval with respect to the Company or any of its Subsidiaries of, or other action by, any Governmental Authority; (iii) violate or conflict with any provision of the Certificate of Incorporation or by-laws of the Company or any of the Organizational Documents of the Company’s Subsidiaries; (iv) require any consent of or other action by any Person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit termination, cancelation, acceleration or other change of any right or obligation or the loss of any benefit under, any provision of any Material Contract or any material Permit affecting the assets or business of the Company and its Subsidiaries; or (v) result in the creation or imposition of any Lien other than Permitted Liens on any properties or assets of the Company or any of its Subsidiaries, except in the case of clauses (i), (ii), (iv) and (v), where any such violation, conflict, breach or default would not be reasonably expected to, individually or in the aggregate, have a Company Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the transactions contemplated by this Agreement.

Tyson Foods/Hillshire Brands (DOJ 2014)

(c)              Conditions Precedent. §4.4(c)(iv)(D): The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby do not and will not require any consent, approval, waiver, license, permit, franchise, authorization or Order (“Consent”) of, or registration, declaration, notice, report, submission or other filing (“Filing”) with, any federal, state or local court, administrative or regulatory agency or commission or other governmental authority or instrumentality, domestic or foreign (each a “Governmental Entity”), other than … (iv) filings, permits, authorizations, consents, notice to and approvals as may be required under, and other applicable requirements of, … (D) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”)…


Verso Paper/Newpage Holdings (DOJ 2014-2015)


(c)               Conditions Precedent. § 6.1(b)-(d): Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the fulfillment (or waiver by all parties (to the extent waiver is allowed by applicable Law)) at or prior to the Effective Time of the following conditions:

                        . . . .

                        (b) No injunction, order, ruling, decree, judgment or similar order by any Governmental Entity of competent jurisdiction (including, for the avoidance of doubt, the jurisdictions set forth on Schedule 6.1(b)) which restrains, makes illegal or otherwise prohibits the consummation of the Merger or any of the other transactions contemplated by this Agreement shall have been entered and shall continue to be in effect, and no Law shall have been enacted, entered, promulgated, enforced or deemed applicable by any Governmental Entity of competent jurisdiction (including, for the avoidance of doubt, the jurisdictions set forth on Schedule 6.1(b)) that, in any case, prohibits or makes illegal or otherwise restrains the consummation of the Merger or any of the other transactions contemplated by this Agreement.

                        (c) Any applicable waiting period under the HSR Act (and any extensions thereof) relating to the Merger shall have expired or been earlier terminated without the imposition of a Non-Required Remedy.

                        (d) The authorizations, approvals, consents and other actions with respect to the Merger and the other transactions contemplated hereby of the U.S. federal, state or local Governmental Entities listed on Section 6.1(d) of the Company Disclosure Schedule shall have been obtained without the imposition of a Non-Required Remedy.

Western Digital/Hitachi (FTC 2012)

(c)            Conditions Precedent. §§7.1 and 7.2, 8.1 and 8.2

7.1 No Adverse Governmental Action, Proceeding or Injunction. No Governmental Entity having jurisdiction over the Company, the Seller, the Buyer or the Buyer Parent shall have issued an order, decree or ruling or taken any other material action enjoining or otherwise prohibiting consummation of the acquisition of the Stock on the terms contemplated by this Agreement; provided that any order, decree or ruling with respect to Antitrust Laws other than those set forth on Schedule 7.2 shall be disregarded for purposes of this Section 7.1.

7.2 Antitrust Approvals. The approvals required to consummate the transactions contemplated by this Agreement pursuant to the Antitrust Laws of the jurisdictions listed in Schedule 7.2 shall have been obtained or any applicable waiting periods thereunder (and any extensions thereof) shall have expired or been terminated.

8.1 No Adverse Governmental Action, Proceeding or Injunction. No Governmental Entity having jurisdiction over the Company, the Seller, the Buyer or the Buyer Parent shall have issued an order, decree or ruling or taken any other material action enjoining or otherwise prohibiting consummation of the acquisition of the Stock on the terms contemplated by this Agreement; provided that any order, decree or ruling with respect to Antitrust Laws other than those set forth on Schedule 7.2 shall be disregarded for purposes of this Section 8.1.

8.2 Antitrust Approvals. The approvals required to consummate the transactions contemplated by this Agreement pursuant to the Antitrust Laws of the jurisdictions listed in Schedule 7.2 shall have been obtained or any applicable waiting periods thereunder (and any extensions thereof) shall have expired or been terminated.


Zillow/Trulia (FTC 2014-2015)

(c)               Conditions Precedent. § 7.01(c)-(d), 7.02(e): Conditions to the Obligations of Each Party. (c) No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree, executive order or award which is then in effect and has the effect of making the Mergers illegal or otherwise prohibiting consummation of the Mergers.

                        (d) U.S. Antitrust Approvals and Waiting Periods. Any waiting period (and any extension thereof) applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated.

                        7.02(e): There shall not be pending any Action by any Governmental Authority (i) seeking to restrain or prohibit the consummation of the Mergers or the performance of any of the other transactions contemplated by this Agreement or the Voting Agreements (including the voting provisions thereunder), (ii) seeking to impose on Zillow, Trulia or any of their respective subsidiaries (A) the sale, divestiture, license or other disposition or holding separate (through the establishment of a trust or otherwise) of any assets or categories of assets of Zillow, Trulia or any of their respective subsidiaries, (B) the imposition of any limitation or regulation on the ability of Zillow to freely conduct its business or own such assets or (C) the holding separate of the shares of Trulia Common Stock or any limitation or regulation on the ability of Zillow to exercise full rights of ownership of the shares of Trulia Common Stock or to effectively control the business or operations of Trulia and Trulia Subsidiaries, or (iii) if adversely determined, would reasonably be likely to have a Material Adverse Effect on Trulia or Zillow