By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions; (ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or (iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform perform, either individually or in the aggregate, if continuing at the Effective Time (iA) would give rise to result in the failure of a condition any of the conditions set forth in Section 6.2(a) 6.1 or 6.2(b6.2 (a “Company Terminating Breach”) and (iiB) is incapable of being cannot be or has not been cured by the Company or waived by the Outside Date or(as extended); provided, if capable of being cured, that Parent shall not have been cured by the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at such time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 7.1(c)(i); or
(ii) prior to obtaining the Shareholder Approval if Company or the Company Board shall (A) have effected an Adverse Recommendation Change, (B) if after the date hereof any Person shall have publicly announced an Acquisition Proposal or an intention (whether or not conditional) to make an Acquisition Proposal, or if any such Acquisition Proposal or intention shall have otherwise become publicly disclosed, fail to publicly reaffirm the Company Board Recommendation within thirty ten (3010) calendar days Business Days of being requested to do so by Parent following receipt of written notice the date of such breach Acquisition Proposal, (C) have materially breached Section 5.2, (D) fail to include the Company Board Recommendation in the Proxy Statement or failure (E) approve, adopt, publicly endorse or recommend, or enter into or allow Company or any of its Subsidiaries to perform from Parent.enter into a definitive agreement for, an Acquisition Proposal (other than an Acceptable Confidentiality Agreement); or
(iii) if any Governmental Entity of competent jurisdiction shall have issued a judgment, order, injunction, rule or decree or taken any other action, in each case under any Antitrust Law, imposing a Substantial Detriment and such judgment, order, injunction, rule, decree or other action shall have become final and nonappealable; or
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement (other than with respect to a material breach of Section 5.2(a) or Section 5.4(b), as to which Section 7.1(c)(ii)(C) will apply), or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time (iA) would give rise to result in the failure of a condition any of the conditions set forth in Section 6.2(a) 6.1 or 6.2(b) Section 6.2 and (iiB) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall cannot have be or has not been cured by the Company within thirty earlier of (301) calendar the Outside Date and (2) 30 days following receipt after the giving of written notice to the Company of such breach or failure failure; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if Parent, Merger Sub or Merger Sub I is then in material breach of any of its covenants or agreements set forth in this Agreement such that Section 6.3(a) or Section 6.3(b) would not be satisfied;
(ii) if (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company shall have failed to publicly reaffirm its recommendation for the Merger within ten (10) Business Days after the date a Company Acquisition Proposal or any material modification thereto is first announced, distributed or disseminated to the Company’s stockholders upon a request to do so by Parent, (C) the Company shall have materially breached or failed to perform from Parentin any material respect any of its obligations set forth in Section 5.2(a) or Section 5.4(b), or (D) the Company or the Company Board (or any committee thereof) shall have formally resolved or publicly authorized or proposed to take any of the foregoing actions; or
(iii) at any time prior to obtaining the Parent Stockholder Approval, in order to accept a Parent Superior Proposal in accordance with Section 5.3(c); provided that Parent shall have (A) simultaneously with such termination entered into the associated Parent Alternative Acquisition Agreement, (B) otherwise complied with all provisions of Section 5.3(c), including the notice provisions thereof, and (C) paid any amounts due pursuant to Section 7.3(c).
Appears in 2 contracts
Sources: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)
By Parent. (i) if the Company (A) shall have breached any of the covenants or agreements contained in this Agreement to be complied with by the Company such that the closing condition set forth in Section 7.2(b) would not be satisfied or (B) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 7.2(a) would not be satisfied, and, in the case of both (A) and (B), such breach is incapable of being cured by the Termination Date or is not cured by the Company within 20 Business Days after the Company receives written notice of such breach from Parent or Merger Sub;
(ii) in the event that prior to the receipt obtaining of the Company Stockholder Approval, in the event that Approval (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall will have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company Recommendation that its stockholders vote in favor of the Joint Proxy Statement distributed to stockholdersMerger and the transactions contemplated hereby, (C) if, following the disclosure or announcement Board of a Takeover Proposal with respect to Directors of the Company (other than a tender or exchange offer described in clause (D) below)fails publicly to reaffirm its recommendation of this Agreement, the Company Board shall have failed to reaffirm publicly Merger or the Company Recommendation other transactions contemplated by this Agreement within five (5) ten Business Days after Parent requests in writing that such recommendation under such circumstances or determination be reaffirmed publiclyreaffirmed, (D) a tender offer or exchange offer is relating to any Company Shares will have been commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall will not have failed sent to recommend against acceptance of such tender offer or exchange offer by its stockholders (includingsecurity holders, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of after the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of a statement disclosing that the announcement Company recommends rejection of such changes), tender or exchange offer or (E) a Takeover Proposal is publicly announced, and the Company Board publicly announces an intention fails to take any issue, within ten Business Days after such Takeover Proposal is announced, a press release that reaffirms the recommendation of the foregoing actions;
(ii) prior to the receipt Board of Directors of the Company Stockholder Approval, if that its stockholders vote in favor of the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4Merger and the transactions contemplated hereby; or
(iii) if the Company shall have materially breached or failed to perform breaches any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in obligations under Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parent6.2.
Appears in 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Applied Molecular Evolution Inc)
By Parent. (i) if the Company shall have breached or failed to perform in any material respect any of its material covenants or agreements set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 6.2(a) or (b) would not be satisfied (a “Terminating Company Breach”); provided, however, that if such Terminating Company Breach is curable by the Company through the exercise of reasonable best efforts prior to the receipt Outside Date and within twenty (20) business days, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.1(c)(i) until the earlier to occur of (1) the expiration of a twenty (20) business day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the Company ceasing to exercise reasonable best efforts to cure such breach or inaccuracy, provided that the Company continues to exercise reasonable best efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(c)(i) if such breach or inaccuracy by the Company is cured within such twenty (20) business day period);
(ii) if any Restraint having the effect of granting or implementing any relief referred to Section 6.2(d) shall be in effect and shall have become final and nonappealable;
(iii) if (x) the Company enters into a Company Acquisition Agreement or (y) the Board of Directors of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof (A) shall have failed to include the Company made an Adverse Recommendation in the Joint Proxy Statement distributed to stockholders, Change or (CB) if, following the disclosure or announcement of shall not have rejected any bona fide publicly announced offer for a Takeover Proposal with respect to within ten (10) business days of the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders making thereof (including, for these purposes, by taking any no position contemplated by Rule 14e-2 with respect to the acceptance of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such a tender offer or exchange offer (orby its stockholders, in the event of which shall constitute a change in the terms of the tender failure to reject such offer or exchange offer, within ten (10) Business Days of the announcement of such changesfor a Takeover Proposal), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iiiiv) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise breaches any material obligations under Section 5.1 or Section 5.3, or the Board of Directors of the Company or any committee thereof shall resolve to do any of the failure of foregoing;
(v) if a condition set forth in Section 6.2(a) or 6.2(b) Company Material Adverse Effect shall occur and (ii) be continuing, provided that if such Company Material Adverse Effect is incapable of being cured curable by the Company by through the exercise of reasonable best efforts prior to the Outside Date orand within twenty (20) business days, if capable of being cured, then Parent shall not have been cured by be permitted to terminate this Agreement pursuant to this Section 7.1(c)(v) until the Company within thirty earlier to occur of (301) calendar days following receipt the expiration of a twenty (20) business day period after delivery of written notice from Parent to the Company of such breach Company Material Adverse Effect, or failure (2) the Company ceasing to perform from Parent.exercise reasonable best efforts to cure such Material Adverse Effect, provided that the Company continues to exercise reasonable best efforts to cure such Company Material Adverse Effect (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(c)(v) if such Company Material Adverse Effect is cured within such twenty (20) calendar day period); or
Appears in 2 contracts
Sources: Merger Agreement (Jda Software Group Inc), Merger Agreement (I2 Technologies Inc)
By Parent. (i) prior to in the receipt event (A) of a breach of any covenant or agreement on the part of the Company Stockholder Approvalset forth in this Agreement such that the condition to the Offer set forth in clause (B)(3) of Annex A hereto would not be satisfied, or (B) that any representation or warranty of the Company set forth in this Agreement shall not have been true and correct when made or shall have thereafter become untrue or incorrect (in each case determined after giving effect to the provisos set forth in clause (B)(1) or clause (B)(2) of Annex A hereto, as applicable) such that any condition to the Offer set forth in clause (B)(1) or clause (B)(2) of Annex A hereto would not be satisfied; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts prior to the date that is thirty (A30) a days after the date on which the Company Adverse Recommendation Change is notified by Parent in writing of such breach or inaccuracy, or, if earlier, the Termination Date (or Extended Termination Date, as applicable), then Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.1(e)(i) until the earlier of: (1) the end of such thirty (30) day cure period, or, if earlier, the Termination Date (or Extended Termination Date, as applicable), or (2) the Company ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy following delivery of written notice from Parent to the Company of such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(e)(i) if such breach or inaccuracy by the Company is cured within the applicable time period); or
(ii) in the event that any of the following shall have occurred, : (BA) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (B) the Company shall have failed to include the Company Board Recommendation in the Joint Proxy Statement distributed Schedule 14D-9 or to stockholders, permit Purchaser to include the Company Board Recommendation in the Offer Documents; (C) ifthe Company Board or any committee thereof shall have for any reason approved, following or recommended that the disclosure Company Shareholders approve, any Acquisition Proposal or announcement Acquisition Transaction (whether or not a Superior Proposal); (D) an Acquisition Transaction Tender Offer shall have been made by a Person unaffiliated with Parent or Purchaser and, within ten (10) Business Days after notice of a Takeover Proposal with respect such Acquisition Transaction Tender Offer is first published, sent or given to the Company (other than a tender or exchange offer described in clause (D) below)Shareholders, the Company shall not have made, pursuant to Rule 14e-2 under the Exchange Act, a statement that the Company recommends rejection of such offer and unconditionally reaffirming the Company Board Recommendation; (E) an Acquisition Proposal shall have failed to reaffirm been publicly disclosed, announced, commenced, submitted or made, and the Company Board fails to (1) publicly and unconditionally reaffirm the Company Board Recommendation and (2) either unconditionally reject or recommend, by the unanimous vote of all directors of the Company, other than those directors that have deemed themselves conflicted, that the Company Shareholders reject such Acquisition Proposal, as applicable, within five ten (510) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly; or (F) the Company, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to any Subsidiary of the Company and the Company Board or any of their respective Representatives shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take breached any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition provisions set forth in Section 6.2(a6.1 hereof and such breach shall have resulted in or facilitated an Acquisition Proposal being announced, submitted or made. The party desiring to terminate this Agreement pursuant to subsection (b), (c), (d) or 6.2(b(e) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, this Section 7.1 shall not have been cured by the Company within thirty (30) calendar days following receipt of give written notice of such breach termination to the other party in accordance with Section 8.2, specifying the provision or failure provisions hereof pursuant to perform from Parentwhich such termination is effected.
Appears in 1 contract
Sources: Tender Offer Agreement
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (iA) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) ), respectively, and (iiB) is incapable of being cannot be cured by the Company by the Outside End Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and the basis for such termination;
(ii) if (A) the Company Board (or a duly authorized committee thereof) shall have effected a Company Adverse Recommendation Change, (B) the Company fails to include the Company Board Recommendation in the Proxy Statement, (C) the Company Board (or a duly authorized committee thereof) shall have adopted, approved, recommended, submitted to the Company’s stockholders, declared advisable, executed or entered into (or resolved, determined or proposed to adopt, approve, recommend, submit to stockholders or declare advisable, execute or enter into) any Alternative Acquisition Agreement (which, for the avoidance of doubt, would not include an Acceptable Confidentiality Agreement), or (D) a tender offer or exchange offer which constitutes a Takeover Proposal shall have been commenced by a Person unaffiliated with Parent and the Company shall not have sent to the Company’s stockholders pursuant to Rule 14e-2 under the Exchange Act, within five (5) Business Days (or, if the End Date is fewer than five (5) Business Days after such breach offer is first published, sent or failure to perform from Parent.given, by the close of business on the Business Day immediately preceding the End Date) after such tender offer or exchange offer is first published, sent or given, and Parent has so requested in writing, a statement reaffirming the Company Board Recommendation and recommending that the Company’s stockholders reject such tender or exchange offer; or
Appears in 1 contract
By Parent. (i) prior if the Company shall have breached or failed to perform any of their covenants or other agreements under this Agreement or any of the receipt representations and warranties of the Company Stockholder Approvalin this Agreement shall have become inaccurate, in the event that any such case where such breach, failure to perform or inaccuracy (A) would result in a Company Adverse Recommendation Change shall have occurred, failure of a condition set forth in Section 2.2(a) or Section 2.2(b) Table of Contents (assuming for this purpose that the Closing were to occur at such time) and (B) cannot be cured by the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholdersEnd Date or, if curable, is not cured within forty five (C45) if, Business Days following the disclosure or announcement Parent’s delivery of a Takeover Proposal with respect written notice to the Company stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i) and the basis for such termination (other than a tender it being understood and hereby agreed that (x) this Agreement may not be terminated pursuant to this Section 8.1(d)(i) if any such breach, failure to perform or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation inaccuracy is cured within such forty five (545) Business Days after Day period and (y) this Section 8.1(d)(i) will not modify or preclude any party’s termination rights pursuant to Section 8.1(b)(i)); provided, however, that Parent requests shall not have a right to terminate this Agreement pursuant to this Section 8.1(d)(i) if Parent or Merger Sub is then in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance material breach of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;their representations, warranties, agreements or covenants in this Agreement; or
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach Board effects a Change of its obligations Recommendation; provided, however, that Parent may not terminate this Agreement pursuant to this Section 5.3(b) or Section 5.4; or
(iii8.1(d)(ii) if Parent fails to terminate this Agreement pursuant to this Section 8.1(d)(ii) prior to 11:59 p.m., Eastern Time on the date which is ten (10) Business Days after Parent is notified in writing that the Company shall have materially breached or failed to perform any Board has effected a Change of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from ParentRecommendation.
Appears in 1 contract
Sources: Merger Agreement (Proofpoint Inc)
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached breached, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach breach, violation or failure to perform perform, either individually or in the aggregate, if continuing at the Closing (iA) would give rise to result in the failure of a condition any of the conditions set forth in Section 6.2(a8.2(a) or 6.2(bSection 8.2(b) (a “Company Terminating Breach”), and (iiB) is incapable of being such Company Terminating Breach cannot be cured by the Company by the Outside Date (or, if capable of being cure, is not cured), shall and has not have been cured waived by Parent, by the Company within thirty earlier of (301) calendar forty-five (45) days following receipt of after written notice of such Company Terminating Breach is delivered by Parent to Company and (2) two (2) Business Days prior to the Outside Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or
(ii) if, prior to obtaining the Company Stockholder Approval, (A) the Company Board or any committee thereof (1) shall have effected a Company Adverse Recommendation Change (provided that Parent’s right to terminate this Agreement pursuant to this Section 9.1(c)(ii)(A) in respect of a Company Adverse Recommendation Change will expire after the Company Stockholder Approval has been obtained) or (2) approves, adopts, publicly recommends, or enters into or allows Company or any of the Company Subsidiaries to enter into, a Company Alternative Acquisition Agreement (other than a Company Acceptable Confidentiality Agreement) or (B) there is a willful and material breach or failure to perform from Parent.of Section 7.3 by Company; or
Appears in 1 contract
By Parent. (i) if, at any time prior to the receipt Effective Time, (A) (x) any of the representations or warranties of the Company Stockholder Approvalherein shall be untrue or inaccurate on the date of this Agreement or shall become untrue or inaccurate, in each case, such that the event that (Acondition set forth in Section 7.2(a) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances would not be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes)satisfied, or (Ey) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case, such that the condition set forth in Section 7.2(b) would not be satisfied and (B) if curable, such untruth, inaccuracy or breach is not cured within thirty (30) calendar days after written notice to the Company (or, if less, the number of calendar days remaining until the Expiration Date) describing such breach in reasonable detail; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(c)(i) if Parent or Sub is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and ;
(ii) is incapable of being cured by if the Company by or any Company Subsidiary shall materially breach Section 6.4; or
(iii) at any time prior to the Outside Date orreceipt of the Stockholder Approval, if capable the Company Board or any committee thereof shall have (1) effected an Adverse Recommendation Change (whether or not permitted to do so under the terms of being curedthis Agreement), (2) adopted or approved or submitted for the consideration of any stockholders of the Company or publicly endorsed, publicly declared advisable or publicly recommended to the Company Stockholders, an Acquisition Proposal other than the Merger or caused the Company or any of the Company Subsidiaries to enter into any Alternative Acquisition Agreement, (3) failed to publicly reaffirm its recommendation of this Agreement within ten (10) Business Days following receipt of a written request by Parent to provide such reaffirmation following the public announcement of an Acquisition Proposal, (4) failed to include in the Proxy Statement the Company Determination or Company Recommendation or included in the Proxy Statement any proposal to vote upon or consider any Acquisition Proposal other than the Merger, or (5) if the Company Board or any committee thereof shall not have been cured by failed to recommend against a competing tender offer or exchange offer for ten percent (10%) or more of any class of the outstanding capital stock of the Company within thirty five (305) calendar days following receipt of written notice Business Days after commencement of such breach offer (including by taking no position with respect to the acceptance of such tender offer or failure to perform from Parent.exchange offer by Company Stockholders); or
Appears in 1 contract
Sources: Merger Agreement (Edgar Online Inc)
By Parent. (i) prior to in the receipt event of a material breach of any covenant or agreement on the part of the Company Stockholder Approvalset forth in this Agreement, or in the event that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the condition set forth in SECTION 7.3 hereof would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue; PROVIDED, HOWEVER, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of its commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this SECTION 8.1(d)(I) until the earlier to occur of (A) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company Adverse Recommendation Change of such breach or inaccuracy, as applicable, or (B) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this SECTION 8.1(d)(I) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period); or
(ii) if a Triggering Event shall have occurred. For purposes of this SECTION 8.1, a "TRIGGERING EVENT" shall be deemed to have occurred if, prior to the Effective Time: (A) the Company Board or any committee thereof shall for any reason have directly or indirectly withheld, withdrawn, amended or modified its recommendation (including, without limitation, by virtue of taking any position or making any disclosure pursuant to the last sentence of SECTION 6.3(c) hereof) in favor of the adoption and approval of this Agreement or the approval of the Merger by the Company's stockholders (collectively, the "RECOMMENDATIONS"); (B) the Company shall have failed to include the Recommendations in the Proxy Statement/ Prospectus; (C) the Company Board or any committee thereof shall have failed to include approved, or recommended that the Company Recommendation in the Joint Proxy Statement distributed to stockholdersstockholders approve, an Acquisition Proposal; (CD) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company shall have entered into any letter of intent or similar document or a Contract (other than a confidentiality agreement as permitted by SECTION 6.1 hereof) accepting an Acquisition Proposal; or (E) a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publiclybeen commenced by a person unaffiliated with Parent, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall not have failed sent to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by pursuant to Rule 14e-2 of promulgated under the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offerSecurities Act, within ten (10) Business Days of the announcement of business days after such changes)tender or exchange offer is first published, sent or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior given to the receipt of Company's stockholders, a statement reaffirming the Company Stockholder Approval, if Recommendations and recommending that the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) Company's stockholders reject such tender or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parentexchange offer.
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to if any representation or warranty of the failure of a condition Company shall have become untrue, in either case such that the conditions set forth in Section 6.2(a) or 6.2(b(b) and would not be satisfied (ii) a "Terminating Company Breach"); provided, however, that if such Terminating Company Breach is incapable of being cured curable by the Company by the Initial Outside Date or the Outside Date, as the case may be, through the exercise of reasonable best efforts and for so long as the Company continues to exercise such reasonable best efforts, Parent may not terminate this Agreement under this Section 7.1(c)(i);
(ii) if any Restraint having the effect of granting or implementing any relief referred to Section 6.2(e) shall be in effect and shall have become final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 7.1(c)(ii) shall not be available to Parent if such Restraint was primarily due to the failure of Parent or Merger Sub to perform any of its respective obligations under this Agreement; or
(iii) if (x) the Company enters into a Company Acquisition Agreement or (y) the Board of Directors of the Company or any committee thereof (A) shall have withdrawn or modified, if capable in a manner adverse to Parent, the Company Board Recommendation or its approval of being curedany of the Transactions, (B) shall have approved or recommended to the stockholders of the Company a Takeover Proposal, (C) shall not have been cured rejected any proposal respecting a Takeover Proposal within ten (10) business days of the making thereof (including, for these purposes, by taking no position with respect to the acceptance of a tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) or (D) shall have failed to publicly reconfirm the Company Board Recommendation or its approval of any of the Transactions within thirty five (305) calendar business days following after receipt of a written notice request from Parent that it do so if such request is made following the making by any Person of such breach or failure to perform from Parent.a Takeover Proposal; or
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (iA) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (iiB) is incapable of being cannot be cured by the Company by the Outside Termination Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice from Parent stating Parent's intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and the basis for such termination; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if it is then in material breach of any of its representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.3(a) or Section 6.3(b) not being satisfied;
(ii) if (A) the board of directors of the Company or any committee thereof shall have made a Company Adverse Recommendation Change, including approving or recommending to the stockholders of the Company a Takeover Proposal, (B) a tender offer or exchange offer for shares of capital stock of the Company that constitutes a Takeover Proposal is commenced prior to obtaining the Company Stockholder Approvals and the board of directors of the Company fails to recommend against acceptance of such breach tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to perform from Parent.recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, (C) the Company enters into a Company Acquisition Agreement , (D) the board of directors of the Company or any committee thereof fails (or the Company fails) to include the Company Board Recommendation in the Proxy Statement or (E) the Company publicly announces its intention to do any of the foregoing;
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement (other than with respect to a breach of Section 5.2 or Section 5.3(c), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time (iA) would give rise to result in the failure of a condition any of the conditions set forth in Section 6.2(a) 6.1 or 6.2(b) Section 6.2 and (iiB) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall cannot have be or has not been cured by the Company within thirty earlier of (301) calendar the Outside Date and (2) fifteen (15) days following receipt after the giving of written notice to the Company of such breach or failure; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(ii) if (i) the Company Board effects an Adverse Recommendation Change, (ii) the Company or the Company Board (or any committee thereof) shall (A) approve, adopt, endorse or recommend any Acquisition Proposal or (B) approve, adopt, endorse or recommend, or enter into or allow the Company or any of its Subsidiaries to enter into, a letter of intent, agreement in principle or definitive agreement for an Acquisition Proposal, (iii) the Company fails publicly to reaffirm its recommendation of the Merger within ten (10) Business Days after a request at any time to do so by Parent, or within ten (10) Business Days after the date any Acquisition Proposal or any material modification thereto is first commenced, published or sent or given to the Company’s shareholders (which reaffirmation must also include, with respect to an Acquisition Proposal, an unconditional rejection of such Acquisition Proposal, it being understood that taking no position with respect to the acceptance of such Acquisition Proposal or modification thereto shall constitute a failure to perform from Parentreject such Acquisition Proposal), (iv) the Company shall have breached any of its obligations under Section 5.2 or Section 5.3(c) or (v) the Company or the Company Board (or any committee thereof) shall authorize or publicly propose any of the foregoing; or
(iii) if the FDA restricts the Company’s ability to (A) manufacture, market, sell or otherwise distribute any Company products previously approved or cleared by the FDA for marketing and sale or (B) obtain approval or clearance to market and sell any products which have not yet been approved or cleared for marketing and sale by the FDA.
Appears in 1 contract
Sources: Merger Agreement (Ep Medsystems Inc)
By Parent. (i) prior if the Company shall have breached or failed to the receipt perform in any material respect any of its material covenants or agreements set forth in this Agreement, or if any representation or warranty of the Company Stockholder Approvalshall have become untrue, in either case such that the event conditions set forth in Section 6.2(a) or (b) would not be satisfied (a "Terminating Company Breach"); provided, however, that if such Terminating Company Breach is curable by the Company by the Outside Date through the exercise of reasonable best efforts and for so long as the Company continues to exercise such reasonable best efforts, Parent may not terminate this Agreement under this Section 7.1(c)(i);
(ii) if any Restraint having the effect of granting or implementing any relief referred to Section 6.2(d) shall be in effect and shall have become final and nonappealable;
(iii) if (x) the Company enters into a Company Acquisition Agreement or (y) the Board of Directors of the Company or any committee thereof (A) a Company Adverse Recommendation Change shall have occurredwithdrawn or modified, in a manner adverse to Parent, the Company Board Recommendation or its approval of any of the Transactions, (B) shall have approved or recommended to the stockholders of the Company Board a Takeover Proposal or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of shall not have rejected any bona fide publicly announced offer for a Takeover Proposal within twenty (20) days of the making thereof (including, for these purposes, by taking no position with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) acceptance of a tender offer or exchange offer is commenced that wouldby its stockholders, if consummated, which shall constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed failure to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iiiiv) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to materially breaches its obligations under Section 5.3 or Section 5.1, or the failure Board of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable Directors of being cured by the Company by or any committee thereof shall resolve to do any of the Outside Date or, foregoing;
(v) if capable of being cured, a Company Material Adverse Effect shall occur and be continuing and has not have been cured by the Company within thirty (30) calendar days following as of the Outside Date after the Company's receipt of prompt written notice of the occurrence of such breach or failure to perform event from Parent.; or
Appears in 1 contract
Sources: Merger Agreement (Warburg Pincus Private Equity IX, L.P.)
By Parent. (i) prior to the receipt of Offer Closing, upon written notice to the Company Stockholder ApprovalCompany, in the event that if (A) a Company an Adverse Recommendation Change shall have occurredoccurred (whether or not permitted under this Agreement), (B) the Company, the Company Board or any committee thereof shall have failed materially breached (or shall be deemed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, have materially breached) Section 7.03 or (C) if, following the disclosure or announcement of a Takeover Proposal with respect written request by Parent to the Company (other than a tender which request may only be made (I) once at any time after the first public announcement of any Acquisition Proposal and one additional time at any time after each material modification thereto, (II) once at any time after the public announcement of any event or exchange offer circumstance that was not previously publicly announced by the Company and that would reasonably be expected to constitute an Intervening Event (regardless of whether the Company or the Company Board knew or did not know of such event or circumstance or the consequences thereof at or prior to the execution and delivery of this Agreement) or (III) an aggregate of an additional two (2) times not in connection with the circumstances described in clause clauses (DI) belowand (II)), the Company Board shall have failed to publicly reaffirm publicly the Company Board Recommendation within (x) in the case of clauses (I) and (III) above, the later of (1) the first Business Day following the Solicitation Period End Date and (2) ten (10) Business Days after Parent’s written request therefor and (y) in the case of clause (II) above, ten (10) Business Days after Parent’s written request therefor, and in each case the Company Board continues to fail to publicly reaffirm the Company Board Recommendation as of the date this Agreement is terminated pursuant to this Section 11.01(c)(i); provided that Parent exercises the right to terminate this Agreement with respect to clause (C), within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 expiration of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of Day period or the commencement of such tender offer or exchange offer first Business Day following the Solicitation Period End Date, as applicable, set forth in clause (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changesC), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt Offer Closing, upon written notice to the Company, if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company Stockholder Approvalset forth in this Agreement shall have occurred that would cause the Offer Condition under subsection (b) or (c) set forth in Exhibit A not to be satisfied, if and such breach has not been or is incapable of being cured by the Company shall be in Willful Breach earlier of its obligations (A) the Outside Date and (B) thirty (30) days after the Company’s receipt of written notice thereof from the Parent; provided, however, that the right to terminate pursuant to Section 5.3(bthis clause (c)(ii) shall not be available to Parent to the extent Parent or Section 5.4; or
(iii) if the Company shall have Merger Subsidiary has materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date herein; or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parent.
Appears in 1 contract
Sources: Merger Agreement (Telular Corp)
By Parent. (i) prior to the receipt of upon a breach by the Company Stockholder Approvalof any representation, in the event that (A) a Company Adverse Recommendation Change shall have occurredwarranty, (B) the Company Board covenant or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements agreement set forth in this Agreement, which breach or failure to perform (i) would give rise to if any representation or warranty of the failure of a condition Company shall have become untrue, in either case such that the conditions set forth in Section 6.2(a8.02(a) or 6.2(bSection 8.02(b) would not be satisfied prior to the End Date and (ii) is incapable of being cured by the Company by the Outside Date such breach would not be curable or, if capable of being cured, shall not have been cured by within the Company within earlier of (x) thirty (30) calendar days Business Days following receipt of written notice by the Company from Parent of such breach and (y) any shorter period of time that remains between the date Parent provides written notice of such breach and the End Date; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.01(c) if either Parent or failure Merger Sub is then in material breach of any representations, warranties, covenants or other agreements hereunder such that the conditions set forth in Section 8.03(a) or Section 8.03(b) would not be satisfied; or
(ii) if (x) there shall have been a Change in the Company Recommendation; provided, however, that Parent’s right to perform from Parent.terminate this Agreement pursuant to this Section 9.01(c)(ii)(x) shall expire on the earlier of (I) ten (10) Business Days after a Change in the Company Recommendation and (II) the opening of the polls at the Company Shareholder Meeting with respect to the Company Shareholder Approval, (y) a tender or exchange offer for Shares that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent and, within ten (10) Business Days after the public announcement of the commencement of such Acquisition Proposal, the Company shall not have filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the holders of Shares reject such Acquisition Proposal and not tender any Shares into such tender or exchange offer, or (z) the Company failed to hold the Company Shareholders’ Meeting no later than five (5) Business Day prior to the End Date; or
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or of failure to perform (iA) would give rise to result in the failure of a condition set forth in Section 6.2(a) 6.1 or 6.2(b) 6.3 and (iiB) is incapable of being cannot be, or has not been, cured by within 20 days after Parent shall have given the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure and stating Parent’s intention to perform from terminate this Agreement pursuant to this Section 7.1(d)(i); provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(i) if Parent or Merger Sub is then in material breach of this Agreement; or
(ii) if: (A) an Adverse Recommendation Change shall have occurred; (B) the Company Board or any committee thereof shall have failed to recommend the Company Stockholder Approval in the Proxy Statement; (C) an Acquisition Proposal is publicly announced, distributed or disseminated to the Company’s stockholders and, following the request of Parent, the Company Board or any committee thereof fails within 10 Business Days of such request to reaffirm its recommendation of the Company Stockholder Approval; (D) the Company Board or any committee thereof shall have approved, endorsed or recommended to the stockholders of the Company an Acquisition Proposal; (E) a tender offer or exchange offer for outstanding Shares shall have been commenced (other than by the Merger Sub, Parent or an Affiliate of Parent) and the Company Board or any committee thereof recommends that the stockholders of the Company tender their Shares in such tender or exchange offer or, within 10 Business Days after the commencement of such tender or exchange offer, the Company Board or any committee thereof fails to recommend against acceptance of such offer; (F) the Company Board or any committee thereof shall have resolved to do any of the foregoing; or (G) the Company shall have intentionally breached in any material respect Section 5.4 or Section 5.5(b). The party desiring to terminate this Agreement pursuant to this Section 7.1 (other than pursuant to Section 7.1(a)) shall give written notice of such termination to the other party.
Appears in 1 contract
By Parent. (i) prior to if the receipt Board of Directors of the Company Stockholder Approval, in the event that (A) withdraws or modifies, in a Company Adverse Recommendation Change shall have occurredmanner adverse to Parent, the Company's recommendation referred to in Section 4.3(b) (B) the Company Board or it being understood and agreed that any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect "stop-look-and-listen" communication to the Company (other than Company's stockholders of the nature contemplated by Rule 14d-9 of the Exchange Act Rules shall not be deemed to constitute a tender withdrawal or exchange offer described in clause (D) belowmodification of such recommendation), or, upon the Company Board shall have failed to reaffirm publicly the Company Recommendation request of Parent, fails, within five (5) Business Days after Parent requests of Parent's written request, to reaffirm its recommendation of the Merger and this Agreement or (B) recommends an Alternative Proposal or Superior Proposal to the stockholders of the Company or enters into any letter of intent, agreement in writing that such recommendation under such circumstances be reaffirmed publiclyprinciple, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement (Dother than a confidentiality agreement in accordance with Section 6.3(b)) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actionsthereto;
(ii) prior to the receipt of if (A) the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially has breached or failed to perform any of its representationscovenants or other agreements contained in this Agreement such that the closing condition set forth in Section 7.2(a) would not be satisfied or (B) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 7.2(b) would not be satisfied and, warranties, in the case of both (A) and (B) (other than (i) with respect to a breach or failure to perform any of the covenants or agreements of the Company set forth in this AgreementSection 6.3 or (ii) with respect only to the covenants which set forth the timeframe for which the Proxy Statement must be filed with the SEC, which the mailing of the Proxy Statement to the Company's stockholders, and the holding of the Special Meeting, in Section 6.2(a), for which, in each case, there shall be no cure period), such breach or failure to perform (i1) would give rise to the failure is not cured within 30 days after receipt of a condition set forth in written notice thereof specifically referencing this Section 6.2(a8.1(d)(ii) or 6.2(b) and (ii2) is incapable of being cured by the Company by the Outside Date date set forth in Section 8.1(b)(ii); or, if capable of being cured, shall not have been cured by the Company within thirty
(30iii) calendar days following receipt of written notice of such breach or failure pursuant to perform from ParentSection 8.3(d)(iii).
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (Ca) if, following the disclosure Board of Directors of Limited or announcement of Holdings shall have withdrawn, or modified or changed in a manner adverse to Parent or the Purchaser such Board's approval or recommendation of this Agreement or the Transactions or shall have entered into a definitive agreement for the consummation of a Takeover Proposal in accordance with Section 4.4(b),(b) the Board of Directors of Limited shall have recommended any proposal other than by Parent or the Purchaser in respect of a Takeover Proposal, (c) the Sellers shall have exercised a right with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal referenced in Section 4.4(b) and shall, directly or through any of their representatives, continue discussions with respect any third party concerning a Takeover Proposal for more than twenty (20) days after the date of receipt of such Takeover Proposal, (d) a Takeover Proposal that is publicly disclosed shall have been commenced, publicly proposed or communicated to either Seller or any of the Company Companies which contains a proposal as to price (without regard to whether such proposal specifies a specific price or a range of potential prices) and the Company Board Sellers shall not have failed to recommend against acceptance rejected such proposal within twenty (20) days of such tender offer its receipt or, if sooner, the date its existence first becomes publicly disclosed, or exchange offer by its stockholders (including, for these purposes, by taking e) any position contemplated by Rule 14e-2 Person or group (as defined in Section 13(d)(3) of the Exchange Act Act) other than recommending rejection Parent or the Purchaser or any of such tender offer or exchange offer) within ten (10) Business Days their respective Affiliates shall have become the beneficial owner of more than 15% of the commencement outstanding shares of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actionseither Seller;
(ii) prior if (a) there shall have been a breach of any representation or warranty (without giving effect to any materiality or similar qualifications contained therein) on the receipt part of the Company Stockholder ApprovalSellers having a Material Adverse Effect, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(bor (b) or Section 5.4; or
(iii) if the Company there shall have materially breached been a breach of any covenant or failed to perform any agreement on the part of its representations, warranties, covenants or agreements set forth the Sellers resulting in this Agreementa Material Adverse Effect, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured within 10 days following written notice to the Sellers of such breach, which breach shall not have been cured within 10 days following written notice to the Sellers of such breach; provided that it has complied with all provisions thereof, including the notice provision therein; provided, however, that for purposes of this clause (ii), no event, change or development shall be deemed a Material Adverse Effect to the extent that such event, change or development arises solely from (A) any actions taken by the Company within thirty Sellers or the Companies in compliance with the express provisions of this Agreement or (30B) calendar days following receipt of written notice of such breach general economic conditions or failure to perform from Parentmatters generally affecting the industries in which the Companies conduct their respective businesses.
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissancere Holdings LTD)
By Parent. (i) prior to in the receipt event of a breach of any representation, warranty, covenant or agreement on the part of the Company Stockholder Approvalset forth in this Agreement such that the conditions set forth in Section 7.02(a) or Section 7.02(b) would not be satisfied as of the time of such breach; provided, however, that notwithstanding the foregoing, (x) in the event that such breach by the Company is curable by the Company by the Termination Date, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 8.01(e)(i) until the earlier of (I) the date that is forty-five (45) calendar days after delivery of written notice from Parent to the Company of such breach and (II) the Business Day immediately prior to the Termination Date (it being understood that, in each case of (I) and (II), Parent may not terminate this Agreement pursuant to this Section 8.01(e)(i) if such breach by the Company is cured within such time period) and (y) the right of termination under this Section 8.01(e)(i) shall not be available if Parent or Merger Sub is then in material breach of any representation, warranty or covenant under this Agreement;
(ii) in the event that a Triggering Event shall have occurred prior to receipt of the Requisite Stockholder Approval. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) a the Company Adverse Recommendation Change shall have occurred, willfully breached the provisions of Section 6.01(b) or Section 6.02(b) in any material respect (without regard to whether such breach results in an Acquisition Proposal); (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; or (C) the Company shall have failed to include the Company Board Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4Statement/Prospectus; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parent.
Appears in 1 contract
By Parent. (i) upon a breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement such that the conditions set forth in Section 8.02(a) or Section 8.02(b) would not be satisfied and such breach cannot be cured by the Outside Date or, if capable of being cured, has not been cured on or before the earlier of (A) the Outside Date, or (B) within 30 calendar days of the receipt by the Company of written notice thereof from Parent; or
(ii) if, at any time prior to the receipt of the Company Stockholder Approval, in the event that (A) a Change in the Company Adverse Recommendation Change shall have occurred, ; (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed (except to stockholders, the extent the Company effects a Change in the Company Recommendation); (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause the Company Board shall have approved, endorsed, adopted, recommended or entered into an Acquisition Agreement; (D) below), the Company Board shall have failed to reaffirm publicly recommend against, subject to Section 7.03(e) and to the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publiclyextent permitted by applicable Law, (DI) any Company Acquisition Proposal that is a tender offer or exchange offer is commenced that would, if consummated, constitute under a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) Schedule TO within ten (10) Business Days of after a written request by Parent that it do so or (II) any other Company Acquisition Proposal that has been publicly disclosed and that the commencement of such tender offer or exchange offer Company reasonably believes could lead to a Superior Proposal within seven (or, in the event of 7) calendar days after a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), written request by Parent that it do so; or (E) the Company Board publicly announces an intention shall have materially breached, or shall be deemed to take any of the foregoing actions;have materially breached pursuant to Section 7.03(h), its obligations under Section 7.02(a) or Section 7.03; or
(iiiii) if, at any time prior to the receipt of the Company Parent Stockholder Approval, after complying with the provisions of Section 7.04(e), the Parent Board (or any committee thereof) authorizes Parent to enter into any Acquisition Agreement concerning a Parent Superior Proposal concurrently with termination of this Agreement; provided that (A) the right to terminate this Agreement pursuant to this Section 9.01(c)(iii) shall not be available if Parent has committed an intentional breach (or deemed intentional breach in accordance with Section 7.04(h)) of Section 7.04 that had an adverse impact on the ability of the Company shall be in Willful Breach of its obligations to propose or negotiate any amendments or modifications to this Agreement pursuant to Section 5.3(b7.04(e), and (B) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise as a condition to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice effectiveness of such breach or failure termination, Parent shall pay the Parent Termination Fee to perform from Parentthe Company.
Appears in 1 contract
Sources: Merger Agreement (Metaldyne Performance Group Inc.)
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) is incapable of being cannot be cured by the Company by the Outside Walk-Away Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and the basis for such termination; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if it is then in material breach of any of its representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.3(a) or Section 6.3(b) not being satisfied;
(ii) if (A) the board of directors of the Company shall have effected a Company Adverse Recommendation Change, (B) a tender offer or exchange offer for shares of capital stock of the Company that constitutes a Takeover Proposal is commenced prior to obtaining the Company Stockholder Approvals and the board of directors of the Company fails to recommend against acceptance of such breach tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to perform from Parent.recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, (C) the Company enters into a Company Acquisition Agreement, (D) the Company fails to include in the Proxy Statement the Company Board Recommendation or (E) the Company or the board of directors of the Company publicly announces its intention to do any of the foregoing; or
Appears in 1 contract
Sources: Merger Agreement (Getty Images Inc)
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (A) would, or would reasonably be expected to, result in a failure of a condition set forth in Section 8.2(a) or Section 8.2(b) and (B) cannot be cured on or before the Outside Date or, if curable, is not cured by the Company within twenty (20) days of receipt by the Company of written notice of such breach or failure from Parent; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(d)(i) if any Parent Party is then in breach of any of its respective representations, warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in either Section 8.3(a) or Section 8.3(b) could not then be satisfied; or
(ii) prior to the receipt of the Company Stockholder Approval, in the event that (A) a the Company Board shall have made an Adverse Recommendation Change shall have occurredChange, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Competing Proposal with respect to the Company (other than a tender offer or exchange offer described in clause (DC) below), the Company Board shall have failed to reaffirm publicly the Company Board Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (DC) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Competing Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (ED) the Company Board publicly announces an intention to take any of the foregoing actions;
actions in clauses (iiA)-(C), or (E) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of have breached its obligations under Section 6.3 or its obligations pursuant to the third sentence of Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform 6.4(c), in each case in any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parentmaterial respect.
Appears in 1 contract
Sources: Merger Agreement (Cole Corporate Income Trust, Inc.)
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (iA) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (iiB) is incapable of being cannot be cured by the Company by the Outside Walk-Away Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice from Parent stating Parent's intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and the basis for such termination; provided, however, that Parent shall not 57 have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if it is then in material breach of any of its representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.3(a) or Section 6.3(b) not being satisfied; or
(ii) if (A) the board of directors of the Company shall have effected a Company Adverse Recommendation Change, (B) a tender offer or exchange offer for shares of capital stock of the Company that constitutes a Takeover Proposal is commenced prior to obtaining the Company Stockholder Approval and the board of directors of the Company fails to recommend against acceptance of such breach tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to perform from Parent.recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, (C) the Company enters into a definitive agreement with respect to any Takeover Proposal or (D) the Company fails to include in the Proxy Statement the Company Board Recommendation;
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform perform, either individually or in the aggregate, (iA) would give rise to the failure of a condition any of the conditions set forth in Section 6.2(a) or Section 6.2(b) (assuming that the date of such determination is the Closing Date) and (iiB) is incapable cannot be or has not been cured (so as to eliminate the basis for such failure to satisfy the relevant conditions set forth in Section 6.2(a) or Section 6.2(b)) within twenty (20) days after the giving of being cured by the Company by the Outside Date written notice to Parent (or, if capable of being curedless than twenty (20) days prior to the Outside Date, prior to the Outside Date); provided that the right to terminate this Agreement under this Section 7.1(d)(i) shall not have been cured by be available to Parent if any of it, Merger Sub or the Investment Adviser is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement so as to cause any of the conditions set forth in Sections 6.3(a) or 6.3(b) not to be satisfied were the Closing then to occur; or
(ii) if prior to receipt of the Company Stockholder Approval, (A) the Company Board or any committee thereof shall have effected (whether or not validly) a Change in Recommendation, (B) the Company fails to publicly reaffirm the Company Recommendation within thirty (30) calendar days following five Business Days after receipt of a written request therefor by Parent, (C) the Company materially breaches Section 5.5 and such breach remains uncured for five Business Days following written notice thereof by Parent to the Company, (D) the Company fails to recommend against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D under the Exchange Act within ten Business Days after the commencement thereof or (E) the Company or the Company Board or any committee thereof publicly announces an intention to effect any of such breach the foregoing; provided, that Parent may not effect a termination under this clause (ii) at any time following a vote being taken on the Company Stockholder Approval at the Company Special Meeting duly convened therefor or failure to perform from Parentat any adjournment or postponement thereof.
Appears in 1 contract
By Parent. (i) prior to the receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or announcement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or (E) the Company Board publicly announces an intention to take any of the foregoing actions;
(ii) prior to the receipt of the Company Stockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a material breach of Section 5.3, as to which Section 7.1(c)(ii) will apply) or any such representations or warranties shall have become untrue after the date of this Agreement, which breach or failure to perform or be true, either individually or in the aggregate, if occurring or continuing at the Effective Time (iA) would give rise to result in the failure of a condition any of the conditions set forth in Section 6.2(a) Sections 6.1 or 6.2(b) 6.3 and (iiB) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall cannot have be or has not been cured by the Company within earlier of (1) the Outside Date and (2) thirty (30) calendar days following receipt after the giving of written notice to the Company of such breach or failure to perform from Parent.or be true; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(ii) if (i) the Board of Directors effects an Adverse Recommendation Change, (ii) the Company or the Board of Directors (or any committee thereof) shall (A) approve, adopt, endorse or recommend any Acquisition Proposal or (B) approve, adopt, endorse or recommend, or enter into or allow the Company or any of its Subsidiaries to enter into, a letter of intent, agreement in principle or definitive agreement for an Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (iii) following the Solicitation Period End Date, the Company fails publicly to reaffirm its recommendation of the Merger within ten (10) business days after the date any Acquisition Proposal (other than an Acquisition Proposal by an Excluded Party) or any material modification thereto (other than a modification to an Acquisition Proposal by an Excluded Party) is first commenced, published or sent or given to the Company’s stockholders, (iv) the Company shall have breached in any material respect its obligations under Section 5.3 or (v) the Company or the Board of Directors (or any committee thereof) shall authorize or publicly propose any of the foregoing;
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