By Western or Auburn upon the failure to satisfy any conditions specified in Section 7.1 if such failure is not caused by any action or inaction of the party requesting termination of this Agreement;
By Western if an Acquisition Event involving Auburn shall have occurred;
By Western after the occurrence of a Default by Auburn and the continuance of such Default for a period of 20 Business Days after written notice of such Default, if such Default, in the reasonable opinion of Western, cannot be cured prior to the Closing or, even though curable by the Closing, it is not cured prior to the Closing;
By Western if the Closing Schedules delivered by Auburn disclose the occurrence of an event or the existence of any facts or circumstances, not disclosed in the Schedules or the Auburn Financial Statements delivered to Western on or before the date hereof, that has had or could reasonably be expected to have a Material Adverse Effect on Auburn and its Subsidiaries, taken as a whole, or after the Effective Time, on Western, or on the consummation of the transactions contemplated hereby (an “Auburn Material Adverse Event”);
By Western upon the failure of any of the conditions specified in Section 7.2 to have been satisfied prior to March 31, 2004 (or April 30, 2004 if any applicable waiting period for Requisite Regulatory Approval requires additional time) provided that Western may not terminate this Agreement under this Section 8.1.11 if the relevant conditions shall have failed to occur as a result of any act, delay or omission by Western.
By Western if Adaptive shall have (i) failed to make the Adaptive Recommendation or (ii) materially breached its obligations under this Agreement by reason of: a failure to call the Adaptive Stockholders Meeting in accordance with Section 5.1(b); a Change in the Adaptive Recommendation; approval or recommendation of (or any proposal to publicly approve or recommend) any Acquisition Proposal; or a failure by Adaptive to prepare and mail to its stockholders the Joint Proxy Statement/Prospectus in accordance with Section 5.1(a);
By Western if Adaptive shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, such that the conditions set forth in Section 6.2(a) or (b) are not capable of being satisfied on or before the Termination Date;
By Western the Buyers, ACHC or the Sellers, in writing, if there shall be (i) any law or regulation (including any Insurance Law) that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited or (ii) any judgment, injunction, order or decree (including, without limitation, under the HSR Act, if required, the Exchange Act or any applicable Insurance Law) enjoining the Parties from consummating the transactions contemplated hereby, provided that the Parties shall have used their reasonable good faith efforts to have any such judgment, injunction, order or decree lifted and the same shall not have been lifted within forty-five (45) days after entry by any court or governmental or regulatory authority; or
By Western if it is unable, in good faith and after using its reasonable best efforts, to obtain Stockholder Approval.
By Western. (d) As used herein, "
