By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 and (B) cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; (ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or (iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;
Appears in 2 contracts
Sources: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, their covenants or other agreements set forth under this Agreement or any of the representations and warranties of the Company in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueinaccurate, which breach or in any such case where such breach, failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, inaccuracy (A) would result in the a failure of any of the conditions a condition set forth in Section 6.1 2.2(a) or 6.2 Section 2.2(b) (assuming for this purpose that the Closing were to occur at such time) and (B) cannot be or has cured by the End Date or, if curable, is not been cured on or prior to the earlier of within forty five (145) the day immediately before the Outside Date and (2) the 30th day after the giving Business Days following Parent’s delivery of written notice to the Company of stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i) and the basis for such breach termination (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 failureinaccuracy is cured within such forty five (45) Business 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 shall not have the a right to terminate this Agreement pursuant to this paragraph (iSection 8.1(d)(i) if Parent or Merger Sub is then in material breach of any of its their representations, warranties, agreements or covenants or agreements set forth in this Agreement;; or
(ii) (A) prior to receipt of the Company Stockholder Approval, if the Company shall have breached or failed to perform in any material respect any Board effects a Change of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach or failureRecommendation; provided, however, that Parent shall may not have the right terminate this Agreement pursuant to this Section 8.1(d)(ii) if Parent fails to terminate this Agreement pursuant to this paragraph Section 8.1(d)(ii) prior to 11:59 p.m., Eastern Time on the date which is ten (ii10) if Business Days after Parent or Merger Sub is then notified in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or writing that the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation has effected a Change of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 and (B) cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its 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”); orprovided, however, that if such Terminating Company Breach is curable by the Company through the exercise of reasonable best efforts prior to the 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 or any committee thereof (A) shall have made an Adverse Recommendation Change occurs, or (B) shall not have rejected any bona fide publicly announced offer for 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 reject such offer for a Takeover Proposal);
(iv) if the Company (i) 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 foregoing;
(v) if a Company Material Adverse Effect shall occur and be continuing, provided that if such Company Material Adverse Effect is curable by the Company Board through the exercise of reasonable best efforts prior to the Outside Date and within twenty (or any committee thereof20) business days, then Parent shall approve or recommendnot be permitted to terminate this Agreement pursuant to this Section 7.1(c)(v) 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 Company Material Adverse Effect, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C2) the Company fails publicly ceasing to reaffirm its recommendation of the Merger within 10 Business Days after the date any Acquisition Proposal or any material modification thereto is first commencedexercise reasonable best efforts to cure such Material Adverse Effect, published or sent or given to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) provided that the Company or the continues to exercise reasonable best efforts to cure such Company Board Material Adverse Effect (or any committee thereofit being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(c)(v) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;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) if the Company (A) shall have breached or failed to perform any of its representations, warranties, the covenants or agreements contained in this Agreement to be complied with by the Company such that the closing condition set forth in this Agreement Section 7.2(b) would not be satisfied or (other than with respect to B) there exists a breach of Section 5.3 or 5.4(b), 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 contained in this Agreement such that the aggregate, if occurring or continuing at the Effective Time, (A) would result in the failure of any of the conditions closing condition set forth in Section 6.1 or 6.2 and (B7.2(a) canwould not be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b)satisfied, and, in the case of this clause both (A) and (B), such breach is incapable of being cured by the Termination Date or failure canis not be cured by the Company within 20 Business Days after the Company receives written notice of such breach from Parent or has not been cured on or Merger Sub;
(ii) in the event that prior to the earlier obtaining of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if Stockholder Approval (A) an a Company Adverse Recommendation Change occursshall have occurred, (B) the Company or will have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company Board (or any committee thereof) shall approve or recommend, or cause or permit that its stockholders vote in favor of the Company to enter into, an Alternative Acquisition AgreementMerger and the transactions contemplated hereby, (C) the Board of Directors of the Company fails publicly to reaffirm its recommendation of this Agreement, the Merger or the other transactions contemplated by this Agreement within 10 ten Business Days after Parent requests in writing that such recommendation or determination be reaffirmed, (D) a tender or exchange offer relating to any Company Shares will have been commenced and the Company will not have sent to its security holders, within ten Business Days after the date any Acquisition Proposal commencement of such tender or any material modification thereto is first commencedexchange offer, published a statement disclosing that the Company recommends rejection of such tender or sent or given to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), exchange offer or (DE) a Takeover Proposal is publicly announced, and the Company or fails to issue, within ten Business Days after such Takeover Proposal is announced, a press release that reaffirms the recommendation of the Board of Directors of the Company Board that its stockholders vote in favor of the Merger and the transactions contemplated hereby; or
(or any committee thereofiii) shall formally resolve or publicly authorize or propose to take if the Company breaches any of the foregoing actions;its obligations under Section 6.2.
Appears in 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Applied Molecular Evolution Inc)
By Parent. (i) if the Board of Directors of the Company (A) withdraws or modifies, in a manner adverse to Parent, the Company's recommendation referred to in Section 4.3(b) (it being understood and agreed that any "stop-look-and-listen" communication to the Company's stockholders of the nature contemplated by Rule 14d-9 of the Exchange Act Rules shall have not be deemed to constitute a withdrawal or modification of such recommendation), or, upon the request of Parent, fails, within five (5) Business Days 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 principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement in accordance with Section 6.3(b)) with respect thereto;
(ii) if (A) the Company has breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement such that the closing condition set forth in this Agreement Section 7.2(a) would not be satisfied or (other than with respect to B) there exists a breach of Section 5.3 or 5.4(b), 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 contained in this Agreement such that the aggregate, if occurring or continuing at the Effective Time, (A) would result in the failure of any of the conditions closing condition set forth in Section 6.1 or 6.2 and (B7.2(b) canwould not be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), satisfied and, in the case of this clause 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 Section 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, 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 cannot be or has not been cured on or prior to the earlier of perform (1) the day immediately before the Outside Date and is not cured within 30 days after receipt of written notice thereof specifically referencing this Section 8.1(d)(ii) or (2) the 10th day after the giving is incapable of written notice to being cured by the Company of such breach or failure; provided, that Parent shall not have by the right to terminate this Agreement pursuant to this paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements date set forth in this AgreementSection 8.1(b)(ii); or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company pursuant to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modificationSection 8.3(d)(iii), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;.
Appears in 1 contract
By Parent. (i) if (a) if, the Company Board of Directors of Limited or of Holdings shall have breached withdrawn, or failed modified or changed in a manner adverse to perform any Parent or the Purchaser such Board's approval or recommendation of its representations, warranties, covenants or agreements set forth in 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 a breach Takeover Proposal referenced in Section 4.4(b) and shall, directly or through any of Section 5.3 their representatives, continue discussions with 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 5.4(b), communicated to either Seller or any of the Companies which contains a proposal as to which Section 7.1(c)(iiprice (without regard to whether such proposal specifies a specific price or a range of potential prices) will apply)and the Sellers shall not have rejected such proposal within twenty (20) days of its receipt or, if sooner, the date its existence first becomes publicly disclosed, or if (e) any representation Person or warranty group (as defined in Section 13(d)(3) of the Company Exchange Act) other than Parent or the Purchaser or any of their respective Affiliates 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, (A) would result in the failure beneficial owner of any more than 15% of the conditions set forth in Section 6.1 or 6.2 and (B) cannot be or has not been cured on or prior to the earlier outstanding shares of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreementeither Seller;
(ii) 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 part of the Sellers having a Material Adverse Effect, or (b) there shall have been a breach of any covenant or agreement on the part of the Sellers resulting in a Material Adverse Effect, which breach 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) if any actions taken by the Company shall have breached Sellers or failed to perform the Companies in any material respect any compliance with the express provisions of its obligations set forth in Section 5.3, this Agreement or (B) if general economic conditions or matters generally affecting the Company shall have breached or failed to perform industries in any material respect any of its obligations set forth in Section 5.4(b), and, in which the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;Companies conduct their respective businesses.
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissancere Holdings LTD)
By Parent. (i) if in the event of a breach of any representation, warranty, covenant or agreement on the part of the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of such that the conditions set forth in Section 6.1 7.02(a) or 6.2 and (BSection 7.02(b) canwould not be or has not been cured on or prior to satisfied as of the earlier of (1) the day immediately before the Outside Date and (2) the 30th day after the giving of written notice to the Company time of such breach or failurebreach; 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 have the right be permitted to terminate this Agreement pursuant to this paragraph Section 8.01(e)(i) until the earlier of (iI) 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 of its covenants representation, warranty or agreements set forth in 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) if the Company shall have willfully breached the provisions of Section 6.01(b) or failed to perform Section 6.02(b) in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed without regard to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), whether such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach or failureresults in an Acquisition Proposal); provided, that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof) thereof shall approve have for any reason effected a Company Board Recommendation Change; or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly shall have failed to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or include the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of Recommendation in the foregoing actions;Proxy Statement/Prospectus; or
Appears in 1 contract
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or of failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in the failure of any of the conditions a condition set forth in Section 6.1 or 6.2 6.3 and (B) cannot be be, or has not been been, cured on or prior to within 20 days after Parent shall have given the earlier of (1) the day immediately before the Outside Date and (2) the 30th day after the giving of Company written notice to the Company of such breach or failurefailure and stating Parent’s intention to 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 paragraph (iSection 7.1(d)(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: (A) if 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 or failed to perform in any material respect any of its obligations set forth in Section 5.3, 5.4 or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b5.5(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach or failure; provided, that Parent shall not have the right . The party desiring to terminate this Agreement pursuant to this paragraph Section 7.1 (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereofother than pursuant to Section 7.1(a)) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation give written notice of the Merger within 10 Business Days after the date any Acquisition Proposal or any material modification thereto is first commenced, published or sent or given such termination to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;other party.
Appears in 1 contract
By Parent. (i) 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 breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 6.2(a) or 6.2 Section 6.2(b) and (B) cannot be or has cured by the Company by the Walk-Away Date or, if capable of being cured, shall not have been cured on or prior to the earlier of within thirty (130) the day immediately before the Outside Date and (2) the 30th day after the giving 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 Company of basis for such breach or failuretermination; provided, however, that Parent shall not 57 have the right to terminate this Agreement pursuant to this paragraph (iSection 7.1(c)(i) if Parent or Merger Sub it is then in material breach of any of its representations, warranties, covenants or other agreements set forth hereunder that would result in this Agreement;
(ii) (A) if the Company shall have breached or failed conditions to perform in any material respect any of its obligations Closing set forth in Section 5.3, 6.3(a) or (BSection 6.3(b) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreementbeing satisfied; or
(iiiii) if (A) an the board of directors of the Company shall have effected a Company Adverse Recommendation Change occursChange, (B) a tender offer or exchange offer for shares of capital stock of the Company or that constitutes a Takeover Proposal is commenced prior to obtaining the Company Board (or any committee thereof) shall approve or recommend, or cause or permit Stockholder Approval and the board of directors of the Company fails to enter intorecommend against acceptance of such tender offer or exchange offer by its stockholders (including, an Alternative Acquisition Agreementfor 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 recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon enters into a request to do so by Parent (which request may only be given once definitive agreement with respect to each of any such Acquisition Takeover Proposal or any such material modification), or (D) the Company or fails to include in the Proxy Statement the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actionsRecommendation;
Appears in 1 contract
By Parent. (i) if in the event of a material breach of any covenant or agreement on the part of the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply)Agreement, or if 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, which breach or failure to perform or to be trueHOWEVER, either individually or that notwithstanding the foregoing, in the aggregateevent 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, if occurring or continuing at then Parent shall not be permitted to terminate this Agreement pursuant to this SECTION 8.1(d)(I) until the Effective Time, earlier to occur of (A) would result in the failure expiration of any of the conditions set forth in Section 6.1 or 6.2 and a thirty (B30) cannot be or has not been cured on or prior to the earlier of (1) the calendar day immediately before the Outside Date and (2) the 30th day period after the giving delivery of written notice from Parent to the Company of such breach or failure; providedinaccuracy, 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 shall may not have the right to terminate this Agreement pursuant to this paragraph (iSECTION 8.1(d)(I) if Parent such breach or Merger Sub inaccuracy by the Company is then in material breach of any of its covenants or agreements set forth in this Agreement;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) if the Company Board or any committee thereof shall for any reason have breached directly or failed indirectly withheld, withdrawn, amended or modified its recommendation (including, without limitation, by virtue of taking any position or making any disclosure pursuant to perform the last sentence of SECTION 6.3(c) hereof) in any material respect any favor of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case adoption and approval of this clause Agreement or the approval of the Merger by the Company's stockholders (Bcollectively, the "RECOMMENDATIONS"), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or shall have failed to include the Company Board (or any committee thereof) shall approve or recommend, or cause or permit Recommendations in the Company to enter into, an Alternative Acquisition Agreement, Proxy Statement/ Prospectus; (C) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any Acquisition Proposal Board or any material modification thereto committee thereof shall have approved, or recommended that the Company stockholders approve, an Acquisition Proposal; (D) 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 shall have been commenced by a person unaffiliated with Parent, and the Company shall not have sent to its stockholders pursuant to Rule 14e-2 promulgated under the Securities Act, within ten (10) business days after such tender or exchange offer is first commencedpublished, published or sent or given to the Company’s shareholders upon 's stockholders, a request to do so by Parent (which request may only be given once with respect to each of any statement reaffirming the Recommendations and recommending that the Company's stockholders reject such Acquisition Proposal tender or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;exchange offer.
Appears in 1 contract
By Parent. (i) 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 breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 6.2(a) or 6.2 Section 6.2(b) and (B) cannot be or has cured by the Company by the Termination Date or, if capable of being cured, shall not have been cured on or prior to the earlier of within thirty (130) the day immediately before the Outside Date and (2) the 30th day after the giving 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 Company of basis for such breach or failuretermination; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (iSection 7.1(c)(i) if Parent or Merger Sub 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 this AgreementSection 6.3(a) or Section 6.3(b) not being satisfied;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an the board of directors of the Company or any committee thereof shall have made a Company Adverse Recommendation Change occursChange, 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 or that constitutes a Takeover Proposal is commenced prior to obtaining the Company Board (or any committee thereof) shall approve or recommend, or cause or permit Stockholder Approvals and the board of directors of the Company fails to enter intorecommend against acceptance of such tender offer or exchange offer by its stockholders (including, an Alternative Acquisition Agreementfor 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 recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any enters into a Company Acquisition Proposal or any material modification thereto is first commencedAgreement , published or sent or given to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (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 (or any committee thereofE) shall formally resolve or the Company publicly authorize or propose announces its intention to take do any of the foregoing actionsforegoing;
Appears in 1 contract
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 (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would, or would reasonably be expected to, result in the a failure of any of the conditions a condition set forth in Section 6.1 8.2(a) or 6.2 Section 8.2(b) and (B) cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and or, if curable, is not cured by the Company within twenty (220) days of receipt by the 30th day after the giving Company of written notice to the Company of such breach or failurefailure from Parent; provided, provided that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (iSection 9.1(d)(i) if any Parent or Merger Sub Party is then in material breach of any of its respective representations, warranties, covenants or agreements set forth in this Agreement;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) if the Company Board shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) made an Adverse Recommendation Change occursChange, (B) following the disclosure or announcement of a Competing Proposal with respect to the Company (other than a tender offer or exchange offer described in clause (C) below), the Company Board (or any committee thereof) shall approve or recommend, or cause or permit have failed to reaffirm publicly the Company to enter into, an Alternative Acquisition AgreementBoard Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any Acquisition a tender offer or exchange offer is commenced that would, if consummated, constitute a Competing Proposal or any material modification thereto is first commenced, published or sent or given to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each 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 Acquisition Proposal tender offer or any exchange offer) within ten (10) Business Days of the commencement of such material modificationtender 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 (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose announces an intention to take any of the foregoing actions;actions in clauses (A)-(C), or (E) the Company shall have breached its obligations under Section 6.3 or its obligations pursuant to the third sentence of Section 6.4(c), in each case in any material respect.
Appears in 1 contract
Sources: Merger Agreement (Cole Corporate Income Trust, Inc.)
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, their covenants or other agreements set forth under this Agreement or any of the representations and warranties of the Company in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueinaccurate, which breach or in any such case where such breach, failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, inaccuracy (A) would result in the a failure of any of the conditions a condition set forth in Section 6.1 2.2(a) or 6.2 Section 2.2(b) Table of Contents (assuming for this purpose that the Closing were to occur at such time) and (B) cannot be or has cured by the End Date or, if curable, is not been cured on or prior to the earlier of within forty five (145) the day immediately before the Outside Date and (2) the 30th day after the giving Business Days following Parent’s delivery of written notice to the Company of stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i) and the basis for such breach termination (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 failureinaccuracy is cured within such forty five (45) Business 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 shall not have the a right to terminate this Agreement pursuant to this paragraph (iSection 8.1(d)(i) if Parent or Merger Sub is then in material breach of any of its their representations, warranties, agreements or covenants or agreements set forth in this Agreement;; or
(ii) (A) prior to receipt of the Company Stockholder Approval, if the Company shall have breached or failed to perform in any material respect any Board effects a Change of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach or failureRecommendation; provided, however, that Parent shall may not have the right terminate this Agreement pursuant to this Section 8.1(d)(ii) if Parent fails to terminate this Agreement pursuant to this paragraph Section 8.1(d)(ii) prior to 11:59 p.m., Eastern Time on the date which is ten (ii10) if Business Days after Parent or Merger Sub is then notified in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or writing that the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation has effected a Change of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;Recommendation.
Appears in 1 contract
Sources: Merger Agreement (Proofpoint Inc)
By Parent. (i) if upon a breach by the Company shall have breached of any representation, warranty, covenant or failed to perform any of its representations, warranties, covenants or agreements agreement set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of such that the conditions set forth in Section 6.1 8.02(a) or 6.2 Section 8.02(b) would not be satisfied and (B) such breach cannot be or cured by the Outside Date or, if capable of being cured, has not been cured on or prior to before the earlier of (1A) the day immediately before Outside Date, or (B) within 30 calendar days of the Outside Date and (2) receipt by the 30th day after the giving Company of written notice thereof from Parent; or
(ii) if, at any time prior to the receipt of the Company Stockholder Approval, (A) a Change in the Company Recommendation shall have occurred; (B) the Company shall have failed to include the Company Recommendation in the Joint Proxy Statement (except to the extent the Company effects a Change in the Company Recommendation); (C) the Company or the Company Board shall have approved, endorsed, adopted, recommended or entered into an Acquisition Agreement; (D) the Company Board shall have failed to publicly recommend against, subject to Section 7.03(e) and to the extent permitted by applicable Law, (I) any Company Acquisition Proposal that is a tender offer or exchange offer under a Schedule TO within ten (10) Business Days 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 Company reasonably believes could lead to a Superior Proposal within seven (7) calendar days after a written request by Parent that it do so; or (E) the Company shall have materially breached, or shall be deemed to have materially breached pursuant to Section 7.03(h), its obligations under Section 7.02(a) or Section 7.03; or
(iii) if, at any time prior to the receipt of such breach the Parent Stockholder Approval, after complying with the provisions of Section 7.04(e), the Parent Board (or failureany committee thereof) authorizes Parent to enter into any Acquisition Agreement concerning a Parent Superior Proposal concurrently with termination of this Agreement; provided, provided that Parent shall not have (A) the right to terminate this Agreement pursuant to this paragraph (iSection 9.01(c)(iii) shall not be available if Parent has committed an intentional breach (or Merger Sub is then deemed intentional breach in material breach accordance with Section 7.04(h)) of any Section 7.04 that had an adverse impact on the ability of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached to propose or failed negotiate any amendments or modifications to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occursSection 7.04(e), and (B) as a condition to the Company or effectiveness of such termination, Parent shall pay the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any Acquisition Proposal or any material modification thereto is first commenced, published or sent or given Parent Termination Fee to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;.
Appears in 1 contract
Sources: Merger Agreement (Metaldyne Performance Group Inc.)
By Parent. (i) if in the event (A) of a breach of any covenant or agreement on the part of the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement such that the condition to the Offer set forth in clause (other than with respect to a breach B)(3) of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply)Annex A hereto would not be satisfied, or if (B) that 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, (A) would result in the failure of any of the conditions set forth in Section 6.1 this Agreement shall not have been true and correct when made or 6.2 and shall have thereafter become untrue or incorrect (Bin each case determined after giving effect to the provisos set forth in clause (B)(1) canor 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 has not been cured on 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 (30) days after the date on which the Company 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 of: (1) the end of such thirty (30) day immediately before cure period, or, if earlier, the Outside Termination Date and (or Extended Termination Date, as applicable), or (2) the 30th day after the giving 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 failure; provided, 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: (A) 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 Schedule 14D-9 or to permit Purchaser to include the Company Board Recommendation in the Offer Documents; (C) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Shareholders approve, any Acquisition Proposal or 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 such Acquisition Transaction Tender Offer is first published, sent or given to the Company Shareholders, the Company shall not have made, pursuant to Rule 14e-2 under the right 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 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 ten (10) Business Days after Parent requests in writing that such recommendation be reaffirmed publicly; or (F) the Company, any Subsidiary of the Company or any of their respective Representatives shall have breached any of the provisions set forth in Section 6.1 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 this paragraph subsection (ib), (c), (d) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (Be) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), Section 7.1 shall give written notice of such breach or failure cannot be or has not been cured on or prior termination to the earlier of (1) other party in accordance with Section 8.2, specifying the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach provision or failure; provided, that Parent shall not have the right to terminate this Agreement provisions hereof pursuant to this paragraph (ii) if Parent or Merger Sub which such termination is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;effected.
Appears in 1 contract
Sources: Tender Offer Agreement
By Parent. (i) if if, at any time prior to the Effective Time, (A) (x) any of the representations or warranties of the Company herein shall be untrue or inaccurate on the date of this Agreement or shall become untrue or inaccurate, in each case, such that the condition set forth in Section 7.2(a) would not be satisfied, or (y) the Company shall have 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 (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 and (B) cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company or any Company Subsidiary shall have breached or failed to perform in any material respect any of its obligations set forth in materially breach Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement6.4; or
(iii) at any time prior to the receipt of the Stockholder Approval, if the Company Board or any committee thereof shall have (A1) effected an Adverse Recommendation Change occurs(whether or not permitted to do so under the terms of this Agreement), (B2) 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 Board (Stockholders, an Acquisition Proposal other than the Merger or caused the Company or any committee thereof) shall approve or recommend, or cause or permit of the Company Subsidiaries to enter into, an into any Alternative Acquisition Agreement, (C3) the Company fails failed to publicly to 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 Merger 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 have 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 10 five (5) 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 upon a request to do so commencement of such offer (including by Parent (which request may only be given once taking no position with respect to each the acceptance of any such Acquisition Proposal tender offer or any such material modificationexchange offer by Company Stockholders), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;; or
Appears in 1 contract
Sources: Merger Agreement (Edgar Online Inc)
By Parent. (i) prior to the Offer Closing, upon written notice to the Company, if (A) an Adverse Recommendation Change shall have occurred (whether or not permitted under this Agreement), (B) the Company, the Company Board or any committee thereof shall have materially breached (or shall be deemed to have materially breached) Section 7.03 or (C) following a written request by Parent to the Company (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 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 clauses (I) and (II)), the Company Board shall have failed to publicly reaffirm 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 the expiration of the ten (10) Business Day period or the first Business Day following the Solicitation Period End Date, as applicable, set forth in clause (C);
(ii) prior to the 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 set 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, and such breach has not been or is incapable of being cured by the earlier of (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 this clause (c)(ii) shall not be available to Parent to the extent Parent or Merger Subsidiary has materially breached any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 and (B) cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreementherein; or
(iii) if (A) an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;
Appears in 1 contract
Sources: Merger Agreement (Telular Corp)
By Parent. (i) if upon a breach by the Company shall have breached of any representation, warranty, covenant or failed to perform any of its representations, warranties, covenants or agreements agreement set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply)Agreement, or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, in either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in the failure of any of case such that the conditions set forth in Section 6.1 8.02(a) or 6.2 and (BSection 8.02(b) canwould not be or has satisfied prior to the End Date and such breach would not be curable or, if capable of being cured, shall not have been cured on or prior to within the earlier of (1x) the day immediately before the Outside Date and thirty (230) the 30th day after the giving Business Days following receipt of written notice to by the Company from Parent of such breach or failureand (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 paragraph (iSection 9.01(c) if either Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or other agreements hereunder such that the conditions set forth in this Agreement;Section 8.03(a) or Section 8.03(b) would not be satisfied; or
(ii) if (Ax) if there shall have been a Change in the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach or failureRecommendation; provided, however, that Parent shall not have the Parent’s right to terminate this Agreement pursuant to this paragraph Section 9.01(c)(ii)(x) shall expire on the earlier of (iiI) if Parent or Merger Sub is then ten (10) Business Days after a Change in material breach the Company Recommendation and (II) the opening of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occursthe polls at the Company Shareholder Meeting with respect to the Company Shareholder Approval, (By) the Company a tender or the Company Board exchange offer for Shares that constitutes an Acquisition Proposal (whether or any committee thereofnot a Superior Proposal) shall approve or recommendis commenced by a Person unaffiliated with Parent and, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, within ten (C10) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any public announcement of the commencement of such Acquisition Proposal or any material modification thereto is first commencedProposal, published or sent or given the Company shall not have filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each Exchange Act recommending that the holders of any Shares reject such Acquisition Proposal and not tender any Shares into such tender or any such material modification)exchange offer, or (Dz) the Company or failed to hold the Company Board Shareholders’ Meeting no later than five (or any committee thereof5) shall formally resolve or publicly authorize or propose Business Day prior to take any of the foregoing actions;End Date; or
Appears in 1 contract
By Parent. (i) if the Company shall have 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 or 5.4(b)5.3, as to which Section 7.1(c)(ii) will apply), ) or if any representation such representations or warranty of the Company warranties shall have become untrueuntrue after the date of this Agreement, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, Time (A) would result in the failure of any of the conditions set forth in Section Sections 6.1 or 6.2 6.3 and (B) cannot be or has not been cured on or prior to by the earlier of (1) the day immediately before the Outside Date and (2) the 30th day thirty (30) days after the giving of written notice to the Company of such breach or failurefailure to perform or be true; provided, provided that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii7.1(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
(iiiii) if (Ai) the Board of Directors effects an Adverse Recommendation Change occursChange, (Bii) the Company or the Company Board of Directors (or any committee thereof) shall approve (A) approve, adopt, endorse or recommend any Acquisition Proposal or (B) approve, adopt, endorse or recommend, or cause enter into or permit allow the Company or any of its Subsidiaries to enter into, a letter of intent, agreement in principle or definitive agreement for an Alternative Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (Ciii) following the Solicitation Period End Date, the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days 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 shareholders upon a request to do so by Parent stockholders, (which request may only be given once with iv) the Company shall have breached in any material respect to each of any such Acquisition Proposal or any such material modification), its obligations under Section 5.3 or (Dv) the Company or the Company Board of Directors (or any committee thereof) shall formally resolve authorize or publicly authorize or propose to take any of the foregoing actionsforegoing;
Appears in 1 contract
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or failure to perform or to be trueperform, either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in give rise to the failure of any of the conditions set forth in Section 6.1 6.2(a) or 6.2 Section 6.2(b) (assuming that the date of such determination is the Closing Date) and (B) cannot be or has not been cured on (so as to eliminate the basis for such failure to satisfy the relevant conditions set forth in Section 6.2(a) or prior to the earlier of Section 6.2(b)) within twenty (120) the day immediately before the Outside Date and (2) the 30th day days after the giving of written notice to Parent (or, if less than twenty (20) days prior to the Company of such breach or failureOutside Date, prior to the Outside Date); provided, provided that Parent shall not have the right to terminate this Agreement pursuant under this Section 7.1(d)(i) shall not be available to this paragraph (i) Parent if Parent or any of it, Merger Sub or the Investment Adviser is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement;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) if the Company Board or any committee thereof shall have breached effected (whether or failed to perform not validly) a Change in any material respect any of its obligations set forth in Section 5.3Recommendation, or (B) if the Company shall have breached or failed fails to perform in any material respect any publicly reaffirm the Company Recommendation within five Business Days after receipt of its obligations set forth in a written request therefor by Parent, (C) the Company materially breaches Section 5.4(b), and, in the case of this clause (B), 5.5 and such breach or failure cannot be or has not been cured on or prior remains uncured for five Business Days following written notice thereof by Parent to the earlier of Company, (1D) the day immediately before Company fails to recommend against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D under the Outside Date and (2) the 10th day Exchange Act within ten Business Days after the giving of written notice to the Company of such breach commencement thereof or failure; provided, that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occurs, (BE) the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company thereof publicly announces an intention to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take effect any of the foregoing actions;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 at any adjournment or postponement thereof.
Appears in 1 contract
By Parent. (i) if the Company shall have breached breached, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach breach, violation or failure to perform or to be trueperform, either individually or in the aggregate, if occurring or continuing at the Effective Time, Closing (A) would result in the failure of any of the conditions set forth in Section 6.1 8.2(a) or 6.2 Section 8.2(b) (a “Company Terminating Breach”), and (B) such Company Terminating Breach cannot be or cured (or, if capable of cure, is not cured), and has not been cured on or prior to waived by Parent, by the earlier of (1) the day immediately before the Outside Date forty-five (45) days after written notice of such Company Terminating Breach is delivered by Parent to Company and (2) the 30th day after the giving of written notice two (2) Business Days prior to the Company of such breach or failureOutside Date; provided, provided that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (iSection 9.1(c)(i) if a Parent or Merger Sub is then in material breach of any Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its covenants or agreements set forth in election to terminate this Agreement;Agreement pursuant to this Section 9.1(c)(i); or
(ii) if, prior to obtaining the Company Stockholder Approval, (A) if the Company shall have breached Board or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of committee thereof (1) the day immediately before the Outside Date and shall have effected a Company Adverse Recommendation Change (2) the 10th day after the giving of written notice to the Company of such breach or failure; provided, provided that Parent shall not have the Parent’s right to terminate this Agreement pursuant to this paragraph (iiSection 9.1(c)(ii)(A) if Parent or Merger Sub is then in material breach respect of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an a Company Adverse Recommendation Change occurs, (B) 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 Board (or any committee thereof) shall approve or recommend, or cause or permit the Company Subsidiaries to enter into, an a Company Alternative Acquisition Agreement (other than a Company Acceptable Confidentiality Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (DB) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any there is a willful and material breach of the foregoing actions;Section 7.3 by Company; or
Appears in 1 contract
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), 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, (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 and (B) cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 30th day 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 paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its 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"); orprovided, 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) an Adverse shall have withdrawn or modified, in a manner adverse to Parent, the Company Board Recommendation Change occursor its approval of any of the Transactions, (B) shall have approved or recommended to the stockholders of the Company a Takeover Proposal or (C) 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 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);
(iv) if the Company (i) materially breaches its obligations under Section 5.3 or Section 5.1, or the Board of Directors of the Company or the Company Board (or any committee thereof) thereof shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 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 upon a request resolve to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actionsforegoing;
(v) if a Company Material Adverse Effect shall occur and be continuing and has not been cured by the Company as of the Outside Date after the Company's receipt of prompt written notice of the occurrence of such event from Parent; or
Appears in 1 contract
Sources: Merger Agreement (Warburg Pincus Private Equity IX, L.P.)
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 6.2(a) or 6.2 Section 6.2(b), respectively, and (B) cannot be or has cured by the Company by the End Date or, if capable of being cured, shall not have been cured on or prior to the earlier of within thirty (130) the day immediately before the Outside Date and (2) the 30th day after the giving calendar days following receipt of written notice to the Company of such breach or failure; provided, that from Parent shall not have the right stating Parent’s intention to terminate this Agreement pursuant to this paragraph (iSection 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 Agreementand the basis for such termination;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an the Company Board (or a duly authorized committee thereof) shall have effected a Company Adverse Recommendation Change occursChange, (B) the Company or fails to include the Company Board (or any committee thereof) shall approve or recommend, or cause or permit Recommendation in the Company to enter into, an Alternative Acquisition AgreementProxy Statement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any Acquisition Proposal Board (or any material modification thereto is first commenceda duly authorized committee thereof) shall have adopted, published or sent or given approved, recommended, submitted to the Company’s shareholders upon a request stockholders, declared advisable, executed or entered into (or resolved, determined or proposed to do so by Parent adopt, approve, recommend, submit to stockholders or declare advisable, execute or enter into) any Alternative Acquisition Agreement (which request may only be given once with respect to each which, for the avoidance of any such Acquisition Proposal or any such material modificationdoubt, 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 offer is first published, sent or 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 any committee thereof) shall formally resolve or publicly authorize or propose to take any of the foregoing actions;exchange offer; or
Appears in 1 contract
By Parent. (i) 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 breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrueAgreement, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring or continuing at the Effective Time, (Ai) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 6.2(a) or 6.2 Section 6.2(b) and (Bii) cannot be or has cured by the Company by the Walk-Away Date or, if capable of being cured, shall not have been cured on or prior to the earlier of within thirty (130) the day immediately before the Outside Date and (2) the 30th day after the giving 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 Company of basis for such breach or failuretermination; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (iSection 7.1(c)(i) if Parent or Merger Sub 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 this AgreementSection 6.3(a) or Section 6.3(b) not being satisfied;
(ii) if (A) if the board of directors of the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the effected a Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (A) an Adverse Recommendation Change occursChange, (B) a tender offer or exchange offer for shares of capital stock of the Company or that constitutes a Takeover Proposal is commenced prior to obtaining the Company Board (or any committee thereof) shall approve or recommend, or cause or permit Stockholder Approvals and the board of directors of the Company fails to enter intorecommend against acceptance of such tender offer or exchange offer by its stockholders (including, an Alternative Acquisition Agreementfor 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 recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, (C) the Company fails publicly to reaffirm its recommendation of the Merger within 10 Business Days after the date any enters into a Company Acquisition Proposal or any material modification thereto is first commencedAgreement, published or sent or given to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or fails to include in the Proxy Statement the Company Board Recommendation or (E) the Company or any committee thereof) shall formally resolve or the board of directors of the Company publicly authorize or propose announces its intention to take do any of the foregoing actions;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 agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply)Agreement, or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, in either individually or in the aggregate, if occurring or continuing at the Effective Time, (A) would result in the failure of any of case such that the conditions set forth in Section 6.1 6.2(a) or 6.2 and (Bb) canwould not be or has not been cured on or prior to the earlier of satisfied (1) the day immediately before the Outside Date and (2) the 30th day after the giving of written notice to the a "Terminating Company of such breach or failureBreach"); provided, however, that if such Terminating Company Breach is 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 not be in effect and shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant under this Section 7.1(c)(ii) shall not be available to this paragraph (i) Parent if such Restraint was primarily due to the failure of Parent or Merger Sub is then in material breach of to perform any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its respective obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in 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) an Adverse shall have withdrawn or modified, in a manner adverse to Parent, the Company Board Recommendation Change occursor its approval of any of the Transactions, (B) shall have approved or recommended to the stockholders of the Company or the Company Board (or any committee thereof) shall approve or recommend, or cause or permit the Company to enter into, an Alternative Acquisition Agreementa Takeover Proposal, (C) the Company fails publicly to reaffirm its recommendation shall not have rejected any proposal respecting a Takeover Proposal within ten (10) business days of the Merger within 10 Business Days after the date any Acquisition Proposal or any material modification thereto is first commencedmaking thereof (including, published or sent or given to the Company’s shareholders upon a request to do so for these purposes, by Parent (which request may only be given once taking no position with respect to each the acceptance of any a tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such Acquisition Proposal tender offer or any such material modification), exchange offer) or (D) the Company or shall have failed to publicly reconfirm the Company Board (Recommendation or any committee thereof) shall formally resolve or publicly authorize or propose to take its approval of any of the foregoing actions;Transactions within five (5) business days after receipt of a written request from Parent that it do so if such request is made following the making by any Person of a Takeover Proposal; or
Appears in 1 contract
By Parent. (i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (other than with respect to a breach of Section 5.3 5.2 or 5.4(bSection 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, Time (A) would result in the failure of any of the conditions set forth in Section 6.1 or Section 6.2 and (B) cannot be or has not been cured on or prior to by the earlier of (1) the day immediately before the Outside Date and (2) the 30th day fifteen (15) days after the giving of written notice to the Company of such breach or failure; provided, provided that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day 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 paragraph (ii7.1(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
(iiiii) if (Ai) the Company Board effects an Adverse Recommendation Change occursChange, (Bii) the Company or the Company Board (or any committee thereof) shall approve (A) approve, adopt, endorse or recommend any Acquisition Proposal or (B) approve, adopt, endorse or recommend, or cause enter into or permit allow the Company or any of its Subsidiaries to enter into, a letter of intent, agreement in principle or definitive agreement for an Alternative Acquisition AgreementProposal, (Ciii) the Company fails publicly to reaffirm its recommendation of the Merger within 10 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 upon a request to do so by Parent (which request may only be given once reaffirmation must also include, with respect to each an Acquisition Proposal, an unconditional rejection of any such Acquisition Proposal, it being understood that taking no position with respect to the acceptance of such Acquisition Proposal or any modification thereto shall constitute a failure to reject such material modificationAcquisition Proposal), (iv) the Company shall have breached any of its obligations under Section 5.2 or Section 5.3(c) or (Dv) the Company or the Company Board (or any committee thereof) shall formally resolve authorize or publicly authorize or propose to take any of the foregoing actions;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)