Common use of POSSIBLE ALTERNATIVE STRUCTURE Clause in Contracts

POSSIBLE ALTERNATIVE STRUCTURE. Notwithstanding any other provision of this Agreement to the contrary, prior to the Effective Time, Buyer shall be entitled to revise the structure of the transaction to provide that Seller shall be merged with and into Newco at the Effective Time, with Newco as the surviving corporation of the Merger. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, Buyer and Seller may jointly elect prior to the Effective Time, to substitute an alternative structure for the accomplishment of the transactions contemplated by this Agreement; it being understood by Buyer and Seller that any change to the structure of the Merger pursuant to this Section 2.11 shall not be adopted if such change would (a) materially delay consummation of the Merger, (b) change the amount or form of consideration to be received by the stockholders of Seller or (c) have an adverse impact on the financial benefits reasonably expected to be derived by, or affect the obligations of Seller to, the security holders (Seller Common Stock, Seller Preferred Stock, Options, Debentures and Warrants) of Seller from the transactions provided for herein. Buyer and Seller agree that this Agreement shall be appropriately amended in order to reflect any alternative structure.

POSSIBLE ALTERNATIVE STRUCTURE. Notwithstanding any other provision of this Agreement to the contrary, prior to the Effective Time, the Buyer shall be entitled to revise the structure of the transaction to provide (a) that Seller the Merger Subsidiary shall be merged with and into the Seller at the Effective Time, with the Seller as the surviving corporation of the Merger; (b) that a newly-formed special purpose subsidiary of the Buyer ("NEWCO") shall be merged with and into the Seller at the Effective Time, with the Seller as the surviving corporation of the Merger, or alternatively, that the Seller shall merge with and into Newco at the Effective Time, with Newco as the surviving corporation of the Merger, or (c) that the Seller shall be merged directly with and into the Buyer at the Effective Time with the Buyer as the surviving corporation of the Merger. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, the Buyer and the Seller may jointly elect prior to the Effective Time, to substitute an alternative structure for the accomplishment of the transactions contemplated by this Agreement; it being understood by the Buyer and the Seller that any change to the structure of the Merger pursuant to this second sentence of Section 2.11 shall not be adopted if such change would (a) materially delay consummation of the Merger, (b) Merger or such change the amount or form of consideration to be received by the stockholders of Seller or (c) would have an adverse impact on the financial benefits reasonably expected to be derived by, or affect by the obligations stockholders of Seller to, the security holders (Seller Common Stock, Seller Preferred Stock, Options, Debentures and Warrants) of Seller from the transactions provided for herein. Buyer and Seller agree that this Agreement shall be appropriately amended in order to reflect any alternative structure.