February 15, 2020

Defense Strategy

Defense Strategy: balance of control over the defense strategy

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)

(d)            Defense Strategy. §6.2(b)

… Parent shall, on behalf of the Parties, control and lead all communications and strategy relating to the Antitrust Laws (provided that the Company is not constrained from complying with applicable Law), provided, further, that the Parties shall consult and cooperate with one another, and consider in good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of either Party in connection with proceedings under or relating to any Antitrust Law prior to their submission.

Actavis/Warner Chilcott (FTC 2013)

(d)            Defense Strategy. §7.2(d): Actavis shall, on behalf of the Parties, control and lead all communications and strategy relating to the Antitrust Laws (provided that Warner Chilcott is not constrained from complying with applicable Law), provided, further, that the Parties shall consult and cooperate with one another, and consider in good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of either Party in connection with proceedings under or relating to any Antitrust Law prior to their submission.

Albertsons/Safeway (FTC 2014)

(d)            Defense Strategy. §5.9 (b)

The Company and Ultimate Parent shall give (or shall cause their respective Affiliates to give) any notices to third parties, and use, and cause their respective Affiliates to use, their reasonable best efforts to obtain any third party consents (i) necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement and the EDS APA or (ii) disclosed in the Company Disclosure Schedule; provided, however that the Company and Ultimate Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the Merger and in seeking any such actions, consents, approvals or waivers. In the event that either Party shall fail to obtain any third party consent described in this Section 5.9(b), such Party shall use its commercially reasonable efforts, and shall take any such actions reasonably requested by the other Party, to minimize any adverse effect upon the Company and Ultimate Parent, their respective Affiliates, and their respective businesses resulting, or which could reasonably be expected to result, after the Effective Time, as applicable, from the failure to obtain such consent. Notwithstanding anything to the contrary contained in this Section 5.9(b), in no event shall the Company or any of the Company Subsidiaries pay, commit to pay or be required to pay any amounts, fees, penalties or other consideration or agree to any other material concessions in order to obtain any third party consents contemplated by this Section 5.9(b) without the prior written consent of Ultimate Parent (such consent not to be unreasonably withheld, delayed or conditioned), except that the Company shall be required to pay amounts for the foregoing purposes to the extent that the Parent Entities provide to the Company or its applicable Subsidiary in advance (by wire transfer of immediately available funds) the necessary funds for such excess amounts and it is acknowledged and agreed that except for any consents expressly contemplated by Section 6.1, no receipt of any consents shall be a condition or requirement to the consummation of the Merger or the Closing.

American Airlines/US Airways (DOJ 2012)

(d)            Defense Strategy. § 4.7(b): Subject to applicable Laws relating to the exchange of information, American and US Airways shall permit the other party to review, in advance, any written communication given by it to, and to the extent practicable consult with each other in advance of any meeting or conference with, any Governmental Entity in connection with the Merger and other transactions contemplated by this Agreement. To the extent permitted by Law, each party shall provide the other with copies of all correspondence between it (or its advisors) and any Governmental Entity relating to the transactions contemplated by this Agreement and, to the extent reasonably practicable, all telephone calls and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include Representatives of American and US Airways. In exercising the foregoing rights, each of American and US Airways shall act reasonably and as promptly as practicable.

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

(d)            Defense Strategy. § 7.02(b), (h):

(b) To the extent not prohibited by the relevant Governmental Authority, the parties shall jointly participate in, and shall cooperate with each other with respect to, all discussions, negotiations and other communications with all Governmental Authorities and other Persons in connection with the Required Approvals or Consents. Each party shall cooperate, and cause its Representatives to cooperate, with the others and any Governmental Authority and such other Persons in furnishing all information reasonably necessary to obtain, or in connection with obtaining, any such Required Approval or Consent. If any information to be furnished by one party to another party contains confidential competitively-sensitive information, the disclosing party may restrict the receipt of such information to the receiving party’s external counsel; provided, that to the extent reasonably practicable the disclosing party also shall provide a redacted version of such information to the receiving party. In connection with the actions and other matters referenced in this Section 7.02, no party shall be required to take any action prohibited by applicable Law. To the extent not prohibited by the relevant Governmental Authority, without limiting the foregoing, each of the parties shall, and shall cause its Representatives to, (i) promptly and in reasonable detail inform the others of any written or material oral communication received from or given to any Governmental Authority or such other Persons, and provide the others with copies of any such written communication, (ii) permit the others to review in advance, to the extent practicable with reasonable time and opportunity to comment and consider in good faith the views of the others with respect to, any proposed submission, correspondence, Filing or other communication by any party to or with any Governmental Authority or such other Persons, including any submission, correspondence, Filing or other communication explaining or defending this Agreement or the transactions contemplated hereby or articulating any regulatory or competitive argument or responding to any request or objection made by any Governmental Authority or such other Persons, (iii) provide reasonable prior notice to and, to the extent practicable, consult with the others in advance of any meeting, material conference or material discussion with any Governmental Authority or such other Persons and (iv) give the others (including their outside counsel) the opportunity to attend and participate in such meetings, conferences and discussions. If reasonably requested by ABI or its Subsidiaries, and if not prohibited from doing so by the relevant Governmental Authority, the Company and its Subsidiaries shall, upon reasonable notice, cause an informed representative thereof to attend any one or more meetings, either by phone or in person, with ABI or its Subsidiaries before a Governmental Authority in support of obtaining the Required Approvals. In connection with the parties’ obligations under this Section 7.02(b), each party shall use its reasonable best efforts to ensure that the other parties are not prohibited by any Governmental Authority from participating in any meetings, discussions, negotiations, conferences or other communications with such Governmental Authority. Without limiting the parties’ obligations under this Section 7.02, other than in respect of the matters contemplated in Section 7.02(h), ABI’s decision with respect to matters relating to the Required Approvals or any Consent of any Governmental Authority will control.

. . . .

(h) Notwithstanding the last sentence of Section 7.02(b) and ABI’s rights to determine and implement the strategy and timing for making any offers or proposals for, or accepting or agreeing to, any Remedial Action pursuant to Section 7.02(c), ABI hereby acknowledges and agrees that the Company, solely on behalf of itself and its Subsidiaries, shall have the sole and exclusive right to discuss and negotiate with the Governmental Authorities in Mexico with respect to the Mexican Competition Matters and, in good faith and in consultation with ABI (as provided in Section 7.02(b)), to determine and implement the strategy and timing for making any offers or proposals for, or accepting or agreeing to, any Remedial Action solely in respect the Mexican Competition Matters; provided, however, that, to the extent not prohibited by the relevant Governmental Authority, the Company shall (i) promptly inform in reasonable detail ABI and its Representatives of any written or material oral communication relating to the Mexican Competition Matters received from or given to the Governmental Authorities in Mexico having jurisdiction over the Mexican Competition Matters, and provide ABI and its Representatives with copies of any such written communication, (ii) permit ABI to review in advance, to the extent practicable with reasonable time and opportunity to comment and consider in good faith the views of ABI and its Representatives with respect to, any proposed material communication by the Company or its Representatives to such Governmental Authorities, (iii) provide reasonable prior notice to and, to the extent practicable, consult with ABI and its Representatives in advance of any meeting, material conference or material discussion with such Governmental Authority and (iv) give ABI (including its outside counsel) the opportunity to attend and participate in such meetings, conferences or discussions. Notwithstanding Section 5.01(j), the Company shall not settle, compromise, discharge or agree to settle any of the Mexican Competition Matters without the prior written consent of ABI, which consent shall not be unreasonably withheld.

Anheuser-Busch Inbev/SabMiller (TBA 2015)

(d) Defense Strategy. § 3.1(a): Except where otherwise required by Law or a Relevant Authority, AB InBev Shall: (a) determine the strategy to be pursued for satisfying the Pre-Conditions and obtaining any other Clearances, including: (i) the timing and sequencing regarding the discussion, offer or agreement of Remedies with Relevant Authorities; and (ii) the determination of Remedies discussed with, offered to or agreed with Relevant Authorities;

AT&T/DirecTV (DOJ 2014)

(d) Defense Strategy. §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)

(d)                      Defense Strategy. § 8.01 (c) Parent shall take the lead in (i) the scheduling of, and strategic planning for, any meeting with any Governmental Authority under the HSR Act or any other applicable Competition Law, (ii) the making of any filings, including the initial filings under the HSR Act, (iii) the process for the receipt of any necessary approvals and (iv) the resolution of any investigation or other inquiry of any such Governmental Authority.  Without limiting the foregoing sentence, except as prohibited by Applicable Law, each of Parent and the Company shall, (A) to the extent reasonably practicable, consult with each other prior to taking any material substantive position with respect to the filings under the HSR Act or any other Competition Law in discussions with or filings to be submitted to any Governmental Authority, (B) to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act or any other Competition Law, and (C) to the extent reasonably practicable, coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act or any other Competition Law.

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

(d)     Defense Strategy. None identified other than what is included in (e) Litigation Commitments below.


Dollar Tree/Family Dollar (FTC 2014-2015)

(d) Defense Strategy. § 5.6(b): (b) . . . Without limiting the foregoing or any of the other provisions of this Section 5.6, the parties agree that, it is Parent’s sole right to devise the strategy for filings, notifications, submissions and communications with or to any antitrust regulatory authority. If any party to this Agreement or any Representative of such parties receives a request for additional information or documentary material from any Governmental Entity with respect to the Merger, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this Agreement, an appropriate response in substantial compliance with such request. No party shall participate in any meeting or teleconference with any Governmental Entity where material issues or any matters relating to timing would likely be discussed in connection with this Agreement and the Merger unless it consults with the other parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other parties the opportunity to attend and participate thereat. Without limiting the foregoing obligations (other than the fourth sentence of this Section 5.6(b)), each party shall, on a current basis, furnish the other parties with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity with respect to this Agreement and the Merger, and furnish the other parties with such necessary information and reasonable assistance as the other parties may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity; provided, however, that Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.6(b) 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. Notwithstanding anything to the contrary contained in this Section 5.6, materials provided pursuant to this Section 5.6 may be redacted (i) to remove references concerning the valuation of the Company and the Merger or other similarly confidential information, (ii) as necessary to comply with contractual arrangements, and (iii) as necessary to address reasonable privilege concerns.

Express Scripts/Medco (FTC 2011)

(d)            Defense Strategy. § 5.8(d): Subject to applicable Laws relating to the exchange of information, Aristotle or Parent shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder; provided that each of the parties hereto shall have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other parties and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions. Subject to applicable Laws relating to the exchange of information, each party shall have the right to attend or be promptly and fully informed following material conferences and meetings between the other party and regulators concerning the Transactions. Notwithstanding anything to the contrary contained in this Agreement, Aristotle, after prior consultation with Plato to the extent practicable, shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances, including in connection with the determination of any Regulatory Actions, and shall take the lead in all meetings and communications with any Governmental Entity in connection with obtaining any necessary antitrust or competition clearances.

Gannett Co./Belo Corp. (DOJ 2013)

(d)            Defense Strategy. § 6.5(a)(v): Prior to submitting or making any such correspondence, filing or communication to any Governmental Authority or members of their respective staffs, to the extent permitted by applicable Law, the parties shall first provide the other party with a copy of such correspondence, filing or communication in draft form and give such other party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Authorities, and shall consider and take account of all reasonable comments timely made by the other party with respect thereto. To the extent permitted by applicable Law, each of the parties shall ensure that the other party is given the opportunity to attend any meetings with or other appearances before any Governmental Authority with respect to the transactions contemplated by this Agreement.

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

(d)            Defense Strategy. § 6.4 Approvals.

(d)  …Notwithstanding anything in this Agreement to the contrary, Parent and Purchaser shall, on behalf of the parties, control and lead all communications and strategy relating to any litigation or to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Merger; providedhowever, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such litigation or approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such litigation or approvals, as applicable.

Kroger/Harris Teeter (FTC 2014)

(d)     Defense Strategy. §5.7(f)

For purposes of this Section 5.7, “reasonable best efforts” shall include Parent proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of assets of Parent or the Company and otherwise taking or committing to take actions that after the Closing would limit Parent’s freedom of action with respect to, or its ability to operate and/or retain, assets of Parent or the Company; providedhowever, that nothing in this Agreement will require, or be deemed to require, Parent to take any action described in this Section 5.7(f) that would reasonably be expected to result in a “Material Adverse Effect on the Transaction.”  “Material Adverse Effect on the Transaction” means a material reduction in the reasonably anticipated economic benefits to Parent of the transactions contemplated by this Agreement measured over a commercially reasonable period.


Medtronic/Covidien (FTC 2014)

(d) Defense Strategy. § 7.2(d): . . . The Parties agree that Medtronic shall, on behalf of the Parties, control and lead all communications and strategy relating to the Antitrust Laws (provided that Covidien is not constrained from complying with applicable Law), provided, further, that the Parties shall consult and cooperate with one another, and consider in good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of either Party in connection with proceedings under or relating to any Antitrust Law prior to their submission.

Mylan/Agila Specialties (FTC 2013)

(d)               Defense Strategy. §4.8

4.8       The Purchaser will be primarily responsible for preparing the clearance applications or filings contemplated or required to be made jointly to obtain such competition approvals or clearances, or to answer any requests from any non-U.S. agency, entity or other government authority responsible for the enforcement of applicable antitrust, competition or merger control laws in the jurisdiction (together with the U.S. Federal Trade Commission and the U.S. Department of Justice, Antitrust Division, herein referred to as the relevant “Competition Authorities”).

National CineMedia/Screenvision (DOJ 2014-2015)

(d)                Defense Strategy. § 5.09(c),(e): (c) Without limiting the generality of the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties hereto shall use all reasonable best efforts prior to Closing to: . . . (ii) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any agreement or document contemplated hereby; and (iii) in the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any agreement or document contemplated hereby has been issued, to have such Governmental Order vacated or lifted.

(e) Each party hereto shall use its reasonable best efforts to defend against all lawsuits or other legal or regulatory proceedings challenging either of the Mergers or their respective consummation, unless the parties mutually consent to settlement of other resolution of the litigation or proceedings. None of the parties shall commit to or agree (or permit their respective Affiliates to commit to or agree) with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act, without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed).

Nielsen Holdings/Arbitron (FTC 2012-13)

(d)            Defense Strategy. § 6.03(c): . . . The parties hereto 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 parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto, including reasonable access to any materials submitted in connection with any proceedings under or relating to the HSR Act or any other applicable Federal, state or foreign competition, merger control, antitrust or similar Law, including any proceeding under 16 C.F.R. § 803.20.

Office Depot/OfficeMax (FTC 2013)

(d)            Defense Strategy. § 5.3(b): . . . Each party shall give the other party to this Agreement reasonable prior notice of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Authority regarding any such filings or any such transaction. Neither party shall independently participate in any formal meeting, or engage in any substantive conversation, with any Governmental Authority in respect of any such filings, investigation or other inquiry without giving the other party reasonable prior notice of the meeting or conversation and, to the extent permitted by such Governmental Authority, the opportunity to attend any such meeting or participate in any such conversation. The parties will consult and cooperate with one another, in connection with 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 the HSR Act or other Antitrust Laws. Neither party will directly or indirectly extend any waiting period under the HSR Act or enter into any agreement with a Governmental Authority related to this Agreement or the transactions contemplated by this Agreement except with the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed). Each party shall promptly furnish the other party with copies of all correspondence, filings and written communications between them and their affiliates and their respective representatives on one hand, and any such Governmental Authority or its respective staff on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that any materials concerning one party’s valuation of the other party or the transactions contemplated by this Agreement, or any party’s internal financial information, may be redacted.

Pinnacle Entertainment/Ameristar Casinos (FTC 2013)

(d)           Defense Strategy. §5.7(f)

In addition, Parent shall take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws and/or applicable Gaming Laws to consummate the transactions contemplated by this Agreement as promptly as practicable, including using its reasonable best efforts to obtain as promptly as practicable the expiration of all waiting periods and obtain all Parent Permits and all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement, and (i) placing particular assets or an operating property in trust upon the Closing pending obtaining control upon subsequent Gaming Approval, (ii) agreeing to sell, divest, or otherwise convey particular assets or an operating property of Parent and its Subsidiaries, and (iii) agreeing to sell, divest, or otherwise convey particular assets or an operating property of the Company and its Subsidiaries, contemporaneously with or subsequent to the Effective Time.

Sysco/US Foods (FTC 2014)

(d)            Defense Strategy.  §5.5. Efforts.

(c)… The Company will consult with Parent prior to any meetings, by telephone or in person, with the staff of a Governmental Authority in connection with the transactions contemplated by this Agreement, and Parent will have the right to have a representative present at any such meeting to the extent permitted by such Governmental Authority and reasonably practical. Parent will consult with the Company prior to any meetings, by telephone or in person, with the staff of a Governmental Authority in connection with the transactions contemplated by this Agreement, and the Company will have the right to have a representative present at any such meeting to the extent permitted by such Governmental Authority and reasonably practical. (e) Without limiting the generality of the foregoing, in connection with the efforts referenced in Sections 5.5(c) and (d) to obtain all necessary consents, approvals, waivers and authorizations of any Governmental Authority required pursuant to the HSR Act, each party to this Agreement shall: (i) cooperate fully with the other parties hereto, shall execute and deliver such further documents, certificates, agreements and instruments and shall take such other actions as may be reasonably requested by any other party hereto to evidence or reflect the Mergers (including the execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (ii) use reasonable best efforts to give all notices (if any) required to be made and given by such party to any Governmental Authority in connection with the Mergers and the other transactions contemplated by this Agreement; (iii) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver or authorization required to be obtained by such party in connection with the Mergers or any of the other transactions contemplated by this Agreement; and (iv) use reasonable best efforts to lift any restraint, injunction or other legal bar to the Mergers; providedhowever, that nothing contained in this Agreement shall require Parent, the Company or a Merger Sub to take, or cause to be taken, any action with respect to any of the assets, businesses or product lines of the Company or any of its Subsidiaries, or of Parent or any of its Subsidiaries (including the Surviving Company), or any combination thereof, (x) that is not conditioned on the consummation of the Mergers or (y) if such action would require the divestiture or holding separate (or any other remedy) of or with respect to any assets of Parent, the Company or any of their Subsidiaries representing, in the aggregate, in excess of $2,000,000,000 of revenue generated between (and inclusive of) January 1, 2013 and December 31, 2013 (any such requirement set forth in clause (y), a “Burdensome Condition”). If requested by Parent, the Company will agree to any action contemplated by this Section 5.5provided that any such agreement or action is conditioned on the consummation of the Mergers. In furtherance of the foregoing, each of Parent and each Merger Sub agrees to provide such assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Authority or other Person whose consent or approval is sought hereunder. The foregoing agreement in this section is made solely to facilitate the closing of the Mergers and does not constitute a representation or admission that the Mergers, if consummated without any modification, would violate any Competition Laws or that agreeing to the divestitures, hold separate conditions or other restrictions permitted herein or suggested by any Person or authority acting under any Competition Law would not be harmful to the parties. Notwithstanding anything in this Agreement to the contrary, Parent shall have the right, but not the obligation, to oppose by refusing to consent to, through litigation or otherwise any request, attempt or demand by any Governmental Authority or other Person for any divestiture, hold separate condition or any other restriction with respect to any assets, businesses or product lines of either Parent or the Company and shall have the obligation to defend litigation instituted by such Governmental Authority or other Person with respect to the legality of the Mergers under applicable Competition Laws. Notwithstanding the foregoing, Parent shall take all actions required under this Section 5.5, in a timely manner, as are necessary to achieve the clearance or approval of the Governmental Authority or other Person prior to the Termination Date, providedhowever, that Parent shall not be required to take actions that would amount to a Burdensome Condition. If there is no decree, order or injunction restricting or prohibiting the Mergers but an appeal is pending, Parent shall not be obligated to proceed to close the Mergers until the Termination Date, as such date may be extended pursuant to Section 8.1(b), and if such appeal remains pending on such Termination Date, Parent shall be obligated to close the Mergers on such date, provided that on such date all other conditions to Closing have then been satisfied. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege.

Tyson Foods/Hillshire Brands (DOJ 2014)

(d)             Defense Strategy. §6.7(e)

Subject to the terms and conditions of this Agreement, each of Parent and the Company shall use 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 to consummate and make effective, as soon as practicable after the date of this Agreement, the transactions contemplated hereby, including using reasonable best efforts to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby and using reasonable best efforts to defend any litigation seeking to enjoin, prevent or delay the consummation of the transactions contemplated hereby or seeking material damages.

Verso Paper/Newpage Holdings (DOJ 2014-2015)

(d)           Defense Strategy. § 5.6(d): . . . Subject to the terms of this Agreement, Parent, after consultation with the Company and giving reasonable consideration to the Company’s views, shall be entitled to direct the defense against any investigation or litigation by, or negotiations with, any Governmental Entity or other Person relating to the Merger or regulatory filings under applicable Law and shall use reasonable best efforts to do so.

Western Digital/Hitachi (FTC 2012)

(d)                       Defense Strategy. § 6.6 Antitrust. (a) Notwithstanding anything to the contrary set forth herein, each applicable Party shall (vi) use reasonable best efforts in litigating or participating in the litigation of any Action whether judicial or administrative, brought by any Governmental Entity, for the purpose of enabling the Parties to consummate the transactions contemplated by this Agreement on the terms and conditions set forth herein. No Party shall initiate any meeting or discussion with, or make any submission to, any Governmental Entity with respect to any filings, applications, investigation, litigation, or other inquiry regarding the transactions contemplated by this Agreement without giving the other Party (or Parties) reasonable prior notice of the meeting or discussion and, to the extent permitted by the relevant Governmental Entity, the opportunity to attend and participate; providedhowever, that no Party shall engage in any substantive communication with any Governmental Entity without the consent of the other Parties.


Zillow/Trulia (FTC 2014-2015)

(d)              Defense Strategy. § 6.1(b): (b) Each party shall keep the other party apprised of the content and status of any communications with, and communications from, any Governmental Authority with respect to the transactions contemplated hereby, including promptly notifying the other party of any communication it or any of its affiliates receives from any Governmental Authority relating to any review or investigation of the transactions contemplated hereby under the HSR Act or any other applicable Competition Laws and shall permit the other party to review in advance (and to consider any comments made by the other party in relation to) any proposed communication by such party to any Governmental Authority relating to such matters. Neither party shall agree to participate in any substantive meeting, telephone call or discussion with any Governmental Authority in respect of any filings, investigation or other inquiry 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 and participate at such meeting, telephone call or discussion. The parties shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing. Subject to the Confidentiality Agreement, the parties shall provide each other with copies of all correspondence, filings or communications between them or any of their representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated hereby; provided, however, that materials may be redacted (i) as necessary to comply with contractual arrangements, and (ii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.